Exposés écrits

CONSTITUTION OF THE

MARITIME SAFETY COMMITTEE

OF THE INTER-GOVERNMENTAL MARITIME

CONSULTATIVE ORGANIZATJON*

COMPOSITION DU COMITEDE LA SÉCURITÉ

MARITIME DE L'ORGANISATION

INTERGOUVERNEMENTALE CONSULTATIVE

DE LA NAVIGATION MARITIME *

* Nolby the Regisl.vy.-Any referkexwhich was issued in a provisional
edition for the use Court have been replaced by to thpages the
present dehnitive edition.
* Notdu GVB~-. Les renv?un texte ayant fait l'oeditiprovisoire
B i'usagdelaCour ont étéremplacés par des rauxpagesdela prksente
édition définitive. CONTENTS - TABLEDES MATIERES

PART 1.-REQUEST FOR AIIVISORY OPINION AND
'WRITTEN STATEMENTS

PREMIEKF PARTIE. - REQUETE POUR AVIS
CONSU1,TATTF ET EXPOSÉS ÉCRITS

SECTION A.-REQUEST FOR AUYISORY OPINION

Page
1.- Letter from the Secretary-General IMCO to the Rcgistrar
(23III59)- Lettre du Secrétaire généraldI'IMÇOau Gref-
fier(z31115g) ................... 8
II.- Resolution adoptedby the Assembly of IMCO at its 11th
Meeting on19 January 1959- Résolution adoptéepar l'As-
sembléede I'IMCO a sa11m8 sessionlexgjanvier 1959 ...
9
SECT10N B.-FI1.E TRhNSM1T'I'ED BY THE SECRETARP-GENERAL
OF lMCO (ART. 65,PARA. 2, OF THE STXTU'ïE)
SECTION 33. - DOSSIER TRANSMIS PAR LE SECBÉTAIRE G~N~RAL
DE L*TRICO(ART. 65,PAR. 2,nu SII'ATUY)

Tntroductory Note. - Introduction ............. IO
List ofdociimcnts file-.Listedes documents déposb ..... rS'

SECTION Ç.-WR1:lTEN S'ïAï'EMENTS

Lettredel'ambassadeurde Belgique aux Pays-Baau Greffierde
la Cour ......................
Exposé écritdu Gouvernement de laRépubliquefrançaise . ,
WrittenStatement of theGovernment of Liberia .....
Written Statement of the Governmentof theUnited States of
Arnerica ......................

Written Statement of the Government of the Republic of
China .......................
Written Statement of the Government of the Republic of
Panama ......................
Exposé écridu Gouvernement de laConfédérationsuisse . .
Expose écritduGouvernement dela Républiqueitalienne. . I'age
9. Letterfrom the Ambassador of Denmarkto the Netherlands. 227
IO. Written Statement of theGovernment ofthe United Kingdom
of Great Britain aNorthern Ireland . . . . . . . . . . 228
XI. Written Statement of the Government of the Kingdom of
Norway . . . . . . . . . . . . . . . . . . . . . . 242
12. Written Statement of the Government of the Kingdom of the
Netherlands . . . . . . . . . . . . . . . . . . . . 247
13. Written Statementofthe Government of India. . . . . . . 253

P,4K'lYII.-ORAL STATEMENTS

DELJXIÈME PAKTPE. - EXPOSES ORAUX

PWC Page
26 IV Go . . . . . . 262 z v60 . . . . . . . 265

27 IV 60 . . . . . . 254 3 v 60 . . . . . . . 266
281~60.. . . . . 264 4 v 60 . . . . . . . 266
IIIV GO . . . . . . 26j 8 vr 60 . . . . . . 267

ANNEXES TO THE NUTE TES
X NNEXES AUX PROC~S-VERBAUX

Page
Oral Statcmcnt of MT.Weeks (Liberia)(26IV 60) . . . . . 269
OralStatement of Mr. Moore (Liberia)(26IV 60) . . . . . . 280
Oral Statement ofRiIr.Weekç(Liheria) (conl'(26-27IV60) . 293
Oral Statement of Dr. F5brega (Panama) (27IV 60) . . . . 302
Oral Statement of Mt-.Hager (U.S.A.) (2IV60) . . . . . .
320
1 Exposéoral de M. Monaco (Italie) (28-2IV 60) . . . . . . 331
7. Oral Statemeiitof Mr. Riphagen (Netherlands)(29 IV60) . . 351
8. Oral Statement ofMr. Seyersted (Norway)(29 IVGo) . . . . 360
Y. Oral Statemeilt oMr. Vallat (United Kirigclom)(2IV-2 v 60) 370
IO. second Oral Statement af Mr. Wceks (riberin)(3v Go) . . . 395
II. second 0h1 Statement of Dr. Fibrega (Panama) (3-4 v60) .
409
12. Second Oral Statement of hlr.Hager (U.S.A .4v 60) . . . 425
1 3 9Second Oral Statement offiIr.Riphagen (Netherlands) (v 60) 430
14. Second Oral Statement ofRIT Vdat (UnitcdKingdom) (4v 60) 431
15- Reply of Mr. Weeks (Lihcria)(4v 60) . . . . . . . . . . 434
16. Repl y of Dr. FAbrega(Panama) (4v 60) . . . . . . . . . 437
Reply of MT. Hager (U.S.A.)(4v 60) . . . . . . . . . . . 436
17. Reply of Elil.iphagen (Netherlands) (4v 60) . . . . . . .
18. 439 SECTION C.-WRITTEN STATEMENTS '
SECTION C. - EXPOSÉS ÉCRITS l

1. LETTRE DE L'AMBASSADEUR DE BELGIQUE AUX
PAYS-BAS AU GREFFIER DE LA COUR

La Haye, le 19 novembre 1959.

Monsieur le Greffier,
J'ai l'honneur de me référer à votre lettre du 5 août 1959,
no zoos<. Dar laouelle vous me demandez d'être fixé. avant le
5 décembre I~S< sur l'intention éventuelle du ouv verne ment
belge dc (l;lx)ît.lin ~niCmi~r:iiiiliclic\.:iI;CUI~~ ~nternatiun:ilu (1,.

4lujricc. i>récis:(ntsuii:ittiti311,uit.til,l'a\% conjulfi~tif d<:iiinndé
à la à propos de la composi&on du Comité de la Sécurité
maritime au sein de 1'1.M. C. O.
Mon Gouvernement vient de me faire savoir qu'il n'envisage pas
le dépôt d'un mémorandum de ce genre, car les grands pays
maritimes faisant connaître individuellement leur argumentation
qui concorde avec le point de vue belge, la désignation d'un avocat
exposant la thèse belge serait superflue.
Je vous prie d'agréer, etc.

(Signé F. X. v.4~ DER STRATES-WAILLET

' These statements are printedin the chronologicaorder in which tliey
were file-Les prhents exposéssont reproduitsuivant l'ordre chronologique
de leur dépbt auGreifc. 2. ESPOSÉ ÉCRIT DU GOUVERNEMENT DE LA
RÉPUBLIQUE FRANÇAISE

La Cour a étésaisie, le 25 mars 1g5g, d'une requête pour avis
consultatif émanant de l'Assemblée de l'organisation intergouver-

nementale consultative de la navigation maritime ainsi conçu:
c Le Comité dc la sécurité maritime de l'organisation intergouver-
nementale consultative de la navigation maritime, élu leIj janvier
1959, a-t-il été établi conformément à la Convention portant
création de l'organisation? o
La résolution adoptée par l'Assemblée de l'organisation (qui
sera ainsi nommée dans cet exposé) le 19 janvier 1959, annexée à la
requête, précise que l'interprétation du paragraphe a) de I'arti-
cle 28 de la Convention a donné lieu à des divergences d'opinion »;
on rappellera donc les termes de cet article:

Article28. a) Le Comitéde la séciiritï niaritinie se compose de
quatorze Membres éluspar l'Assembléeparmi les i\lembres, gou-
vernements des pays qui ont unintérStiiriportaiit dans les questions
de séciirité maritime. Huit au moins de ces pays doivent êtreceux
qui possedcnt les flottes de commerce les pliis importantes; l'élection
Afeinbres, gotivernements des autres pays qui ont un intérEt im-ux
portant dans les questions de séciiritéiiiaritirnc, tels que les pays
dont les ressortissants entrent, en grand nombre, dans la com-
position des équipages ou qui sont intéressés au transport d'un
grand nombre de passagers de cabine et de pont et, d'autre part,
aux principales régionsgéographiques.

b) Les afembres du Comité de la séciiritémaritime sont élus
pour une période de quatre ans et sont rééligibles.u
Les éléments de la question posée à la Coiir étant ainsi réunis,
les présentes observations seront limitées à l'exposé de quelques
considérations d'ordre général auxquelles le Gouvernement de la
République française, qui a, dès l'origine, marqué un vif intérêt
pour l'organisation, attache de l'importance.
D'après l'article 12 de la Convention, le Comitk de la sécurité
maritime est l'un des organes essentiels de l'Organisation, à côté
de l'Assemblée et du Conseil. Tous les Etats sont membres de

l'Assemblée (article 13). mais il est utile d'indiquer comment sont
désignés les membres du Conseil, selon les articles 17 et 18 de la
Convention.
IIArticle 17. Le Conseilcomprend seize hlembres, répartis comme
suit:
a) six sont les gouvernements des pays qui sont le plus intéressés
à fournir des services internationaux de navigation maritime;
b) six sont les gouvernements d'autres pays qui sont le plus
intéressésdaris le commerce international maritime; EXPOSÉ ÉCRIT DU GOUVERXEIIEST FKAXÇAIS
25
c) deux sont éluspar l'Assembléeparmi les gouvernements des
pays (loiont un intérêtnotable à fournir des services internationaux
de navigation maritime;
11)et deux sont élus par l'Assembléeparmi les gouvcrneinents
d'aiitres pays qui ont iin intérèt notable dans le commerce inter-
iiatioiial maritime.
Eii application des priiicipcs énoncésdans le présent article, le
premier Conseil sera composé comme prévii à l'annexe 1 de la
piésente Convention.

Article18.sauf dans le cas prévu à l'annese 1 à la préseiiteCon-
vcntion, le Conseildétermine,aus fins d'application de l'alinéa a) de
l'article 17, les Membres, gouvernements des pays qui sont le plus
iiitéressés à fournir des services internationaux de navigation
maritime; ildétermine également,aux fins d'application de l'alinéa
c) de l'article17: les Alembres, gouvernements des pays qui ont un
iiitérgt notable a foiirnir de tcls services. Ces déterminations sont
faites à la majorité des vois du Conseil, celle-cidevant comprendre
la majoritf des vois des Menibres représentésao Conseil en vertu des
alinéas 11)ctc) de l'article 17. Le Conseildétermineensuite, aux fins
d'application de I'aliriéa b) de l'article 17, les Jlembres, gouver-
maritime interiiational. Chaque Conseil établit ces déterminations
dans uii délai raisoiiiiableavant chacune des sessions ordinaires de
l'Assemblée. »

Le problème qui se pose est donc de déterminer quelles sont les
règles adoptées par l'organisation pour la désignation des membres
(le l'un des organes de cette institution. Problème juridique par
nature, comme l'a dit la Cour dans son avis co,nsultatif du zS inai

1948 relatif aux conditions de l'admission d'un Etat comme membre
des Nations Unies (article 4 de la Charte) (Keczleildes Arrlts, .4vis
consz~ltatifs et Ordo~znances, p. 61), puis dans son avis consultatif
du 3 mars 1950 sur la compétence de l'Assemblée générale pour
l'admission d'un Etat aux Nations hies (mêmeRecueil, pp. 6-7).
C'est en s'inspirant des considérations développées au cours de
ces deux questions que le Gouvernement de la République française
présentera ses observations dans la présente affaire. 11s'agit d'inter-
préter un texte de constitution d'u~ie organisation internationale,
de remplir doncune fonction essentiellement judiciaire, pour déter-

miner l'étendue des pouvoirs d'un organe de cette institution, sans
qu'il soit nécessaire de s'arreter aux mobiles, ni aux cas concrets qui
peuvent se trouver mis en cause. A-t-on bien appliqué un texte de
constitution est une question qui doit êtretranchée csous l'esprit
abstrait qui lui a étédonné ,I (avis du 28 mai 1948, p. 61). La
désignation des membres du Comité de la sécuritémaritime a-t-elle
étéfaite en violatioii d'une règle quelconque de la Charte de l'organi-
sation? Ce problème sera examiné en recherchant d'abord quelles
sont ces règles d'après la Convention, ensuite en se référant aux
règles correspondantes d'autres Organisations internationales. afin
de replacer l'affaire dans le contexte généraldes pouvoirs reconnus26 EXPOSÉ ÉCRITDU GOUVERSEMEST FRASÇAIS

par les chartes constitutives pour la désignation des organes princi-
paux.

1.- Examen de la Convention relative à la création d'une
Organisation maritime consultative intergouvernementale. faite à
Genève le 6 mars 1948 (Xations Unies, Rectreil des Traités, 1gj8,
vol. 289, pp. 49 et suivantes).
L'article28qui fait l'objet delarequête pour avisconsultatif remet
A l'Assemblée l'électiondes 14 membres du Comité de la sécurité
maritime $armi les me?nbres,goztverneinentsdes pays qui ont zrn

intérétimportant dans les pestions de séczrrité maritinte. C'est là une
condition juridique de portée généraleet qui doit être prise en
considération en premier lieu.
Condition de portée généraleénoncéedans le début de l'article,
qui n'est d'ailleurs qu'une conséquence de la volonté de création
du Comité.C'est presque un tautologisme que dire: les membres du
Comitéde la sécuritéinaritime doivent avoir un intérét important
dans les questions que traitera le Comité,i. e., la sécuritémaritime.
Maispuisque cette répétitiona étévoulue, il faut lui donner savaleur
et constater quelacompétence en matière desécvritémaritimeest la
condition juridique qne doivent remplir tous les Etats qui souhaitent
entrer dans ce Comitéet que la constitution de l'Organisation fait
de cette compétenceune qualité nécessairepour l'élection an Comité.
C'est une disposition analogue à celle que contient l'articlc 4 de la

ChartedesNations Unies, paragraphe 1,quidétermine lesconditions
à remplir pour devenir membre des Nations Unies. lles indicatiotis
du même ordre setrouvent dans tous les actescréant desinstitutions
internationales; s'agissant d'une organisation maritime, il est donc
normal de prévoir que, pour pouvoir êtreélumembre du Comité,il
faut avoir un intérêtimportant en matière de sécurité inaritime.
Le sens des mots intérêt important en matière de sécurité
maritime est éclairépar la définition du contenu de la notion de
sécuritémaritime qui se trouve dans l'article 29, immédiatement
après l'article qui créele Comité.

cArticle 29. a) Le Comité dela sécurité maritime doit esaininer
toutes lesquestions qui relkventde la compétence[lel'Organisation,
tellesqiie les aides h la navigatioii maritinie,In coiistruction et
l'équipement desnavires, les questions d'équipage daiis la inesiire
où ellesintéresseiitla skcurité,lesrkgleriientsdestinisprévenirles
abordagcç,la iii;ini~>iilntiies cargaisons dangereuses,la rCg1enien-
tation de la sécuritéen mer, les renseignements hydrographiques,
les journaux de bord et les documents intéressant la navigation
inaritimc, les eiiqnêtcssiir les accidents en mer, le sauvetage des
biens et des persoiines ainsi que toutes autres qiiestions ayant un
rapport direct avec la sécuritmaritime.
b) Le Comitéde la skurité maritime prend toutes les mesiires
nécessairespolir mener i bien lesmissions que lui assigne la Con-
vention oii I'r\sseinbl(.eoii qui pourronIiiêtre confiéesdansle EXPOSÉ ÉCRIT DU GOUVERNE?IENT FRAKÇAIS 27

cadre du présentarticle par tout autre instrument intergouverne-
mental.
c) Compte tenu des dispositions de la XIIme Partie, le Comité
de la sécurité maritime doit maintenirdcs rapports étroitsavec les
autres organismes iritergouvernementaux gui s'occupent de trans-
ports et de communications, susceptibles d'aider l'organisation à
atteindre son buten augmentant la sécuritien meret en facilitant,
du point de vue de la sécuritéet du sauvetage, la coordination des
activités danslesdomainesde la navigation maritime, de l'aviation,
des télécommnnicatioiie st de la météorologier.

L'article est parfaitement clair, et il est inutile de le paraphraser,
car il décrit bien l'ensemble des problèmes dans lesquels, pour être
éluau Comitéinstitué dans l'article précédent,il sera nécessairede
montrer qu'on a un intérêtimportant. Le pouvoir d'élire donné
par la Conventio? à l'Assemblée est donc le pouvoir de désigner
parmi tous les htats qui peuvent établir l'importance de leur
intérêt à résoudre ou, au nioins, à traiter, les problèmes énumérés
à l'article29. quatorze membres du Comité.
L'affaire serait donc des plus simples si l'article 26 s'arrêtait à
la seule condition de candidature fondée sur l'intérêtimportant.
Mais la suite de l'article, dans les précisions qu'il apporte sur la
condition primordiale, porte: 6 pays doivent posséder les flottes

de commerce les plus importantes, les autres doivent représenter
de façon adéquate les autres pays qui, de la manière indiquée dans
l'article, peuvent manifester un intérêt important à la sécurité
maritime, et il faut enfin tenir compte de la répartitiongéographique.
Cesexpressions de l'article28 paraissent rentrer dans la catégorie
connue des conditions d'admission à un statut juridique déterniirié,
la décision d'attribution de ce statut par l'organe compétent ne
pouvant êtreprise que si ces conditions sont remplies. Sans doute,
en l'espèce, les conditions de possession d'un intérêt important
peuvent-elles apparaître au laïc comme difficiles à établir mais, dans
le milieu spécialiséoù elles trouvent leur application, les critèrcs
visésau texte sont connus ou vérifiables par des institutions dont

la connaissance de ces éléments est l'une des raisons d'être.Bien
que cela ne soit pas nécessaire pour la solution juridique du pro-
blèmeabstrait, seul posé àla Cour, indiquons à titre d'exemple que
les questionsmaritimes ont étél'objet deconventions internationales
nombreuses auxquelles tout État qui a un intérêtimportant dans
la sécurité maritime n'a pu rester étranger (cf.l'état des ratifications
des conventions maritimes au ler août 1957, dans le Rapport du
Directeur général à la qrmesession de la Conférenceinternationale
du travail, 1958, Rapport 1, Annexe 1,pp. 62-63; cf. aussi rRègles
internationales pour prévenir les abordages en mer approuvées par
la Conférenceinternationale du 10juin 1948 pour la sauvegarde de
la vie humaine en mer », Keczceildes Traités, Nations Unies, vol.
191, 1954, p. 21). Mais, de-toute manière, le problème juridique

n'est pas de contrôler si tel Etat a, ou n'a pas, un intérêt important28 EXPOSE ECRIT DU GOUVERSE~IEST FRANÇAIS

en matière de sécurité maritime, possède ou non une flotte de
commerce parmi les pliis importantes, a des ressortissants en grand
nombre dans les équipages, ou est intéresséau transfert d'un grand

nombre de passagers de cabine et de pont; Ic problème est, ayant
constaté qu'il existe dans cet instrument international qui a créé
l'organisation des conditions d'admission au Comité de sécurité
maritime, de recherclier si ces conditions sont laissées au libre
examen par l'Assemblée ou si celle-ci a iine compétence liée, les
donnéesde la statistique devant se substituer en somme au pouvoir
de choisir. Le Gouvernement de la Répiiblique française, appliquant

les principes d'interprétation soiivent affirmés par la Cour selon
lesquels il faut appliquer aux mots leur signification naturelle,
pense que si l'i\ssembléc a reçu le pouvoir d'élire,elle a le pouvoir
de choisir, raisonnablement et de bonne foi, entre les États qui
présentent les conditions de fond requises par la Convention.
La Convention a défini clairement ce qu'il faut entendre par
qiiestions de sécurité maritime relevant de la compétence de
l'organisation dans son article 29; elle a fait d'une coniiaissance

réelle de ces questions la condition nécessaire d'aptitiidc à la
désignation comme membre du Comité de la sécurité maritime et
elle a confié à l'Assemblée le pouvoir d'élire les membres de ce
Comité.
C'est d'une manière identique que la Coiiveiition procède pour
l'élection au Conseil (article 17 cité ci-dessus). par des critères
tcchniques précis dont il a étéfait application pour le premier

Conscil dans l'annexe 1à la Convention (Keczreildes Traités,op. cit.,
P. 105). Cette liste est intéressante pour la présente affaire,car elle
montre immédiatement qu'un choix a étéexercé,notamincnt pour
l'apl~lication de l'article17 a) (... «pays qui sont le plus intéressés
à fournir des services internationaux de navigation maritime II),
car les six Etats désignésne sont pas les États les plzis iittéressés
mais parmi les États les plus intéressés.II y a eu élection, choix et
non pas application d'un ordre statistique <luelconque ainsi qu'il

apparaît à la seule lecture de cette liste, et la consultation des
différentes statistiques utilisables à cet effet le cqnfirmerait, si
besoin était. La mêmeobservation vaut pour les six Etats désignés
à l'annexc 1en application du paragraphe b) de l'article 17.
Or, les membres ainsi désignés enapplication de l'article 17
restent en fonction iusqu'à la clôture de la session ordinaire suivante
de l'Assemblée,puii sont soumis à réélection..4 partir de ce moment

la comu'~ ~ ~~ ~~matière~-~~~hoix ~es membres du Conseil revient
entièrement au Conseil (cf. article 18 cité ci-dessus). C'est donc,
dans le régime fixépar la constitution dc l'Organisation, le Conseil
qui détermine quelssont les pays qui sont le plus intéressés à fournir
des services internationaux de navigation maritime, ceux qui ont
un intérêtnotable à fournir de tels services et ceux quisont le plus
intéressésdans le commerce maritime international. L'article dit
bien: <iLe Conseil détermine ...1).pouvoir qui implique un examen EXFOSÉ ~CIIIT IIU GOUVERNEIIIENT FRANÇAIS 29
et une décision,un choix entre les pays qui présentent la qualifica-

tion requise. Sile Conseil a ce pouvoir, ilest naturel que l'Assemblée,
appelée à élireles membres du Comitéde la sécurité maritime selon
des critères fixés, ait la mêmecompétence et la mêmeliberté de
détermination. Les qualifications déterminées dans le traité jouent
en somme le rôle de directives pour les organes chargés de procéder
aux élections; pour satisfaire aux exigences multiples et diverses
de représentativité dans les institutions internationales, il faut bien
laisser aux assembléesune certaine liberté de choix, ce choix étant
guidépar les conditions généralesd'aptitude Ctablies dans le traité
créant chaque institution.
Toute autre interprétation aboutirait à différencier lespoukirs
du Conseil et de I'.4ssembléeen matière de désignation des membres
des organismes directeurs de l'organisation et, en l'absence d'une
disposition formelle, cette interprétation n'est pas soutenable. Une
telle thèse ferait en effet, on l'a déjà remarqué, d'une statistique,
non officielle dans la plupartdes cas, la seule source de désignation
à des fonctions dans une institution internationale. Faut-il ajouter
que ces statistiques ne sont pas opposables aux Etats comme
documents ayant une portée juridique, ce que, au surplus, elles

n'ont jamais prétendu avoir? Simple recueil de chiffres dont les
éditeurs ne contrôlent ni rie garantissent l'exactitude, ce sont des
informations utiles du point de vue économique mais sans force
probante.
11suffira, sur ce point, de signaler les travaux si intéressants du
Bureau international du Travail pour rappeler les controverses, non
réglées,sur diverses questions maritimes soulevées par l'application
de l'article 28 de la Convention (notamment Conférencetechnique
maritime préparatoire, Londres, automne 1956, P. T.M. C. 111,
113,11111;Rapport de la Commission d'enquêtede 1'0. 1. T., mai-
novembre 1949; Commission paritaire maritime, 18me session,
octobre 1955. JMC/r8/4/1). D'autres Organisations internationales
ont aussi étudiéces problèmes (cf. les publications de l'Organisation
européenne de Coopération économique, Les transports mari-
times »,MT (56) 4.publiéen juillet 1956, pp. 53-55 et 67; MT (57) 7,
publiéen juillet 1957; mêmeétudepubliée en juin 1958sans numéro,
pp. 55-56; étude communiquée aux Gouvernements membres de
1'0. E. C.E. le 31 janvier 1958, pp. 2 à 19). Cesdiverses études ne
font que confirmer l'impossibilité de transformer en source de droit
les indications statistiques fortementcontroversées dont il s'agit.

Il faudrait, si l'on écartait l'interprétation ci-dessus présentée,
examiner au fond les conditions énoncéesdans le texte de l'article
28; chacune pose des problèmes. La condition de possession > ,e
flottes de commerce les plus importantes (largest ship-owning
nations, dans le texte anglais; paises que posean, dans le texte
espagnol, Recueil des Traités, op. cit., p. 86) pose le problème de
la nationalité et de l'appartenance des navires (cf. notamment
Gidel, Le droit international pnblic de la,mer, tome 1, pp. 72 et30 ESPOSÉ ÉCRIT DU GOUVERXE>IENT FRASÇAIS

suivantes; Ripert, Droit ~ifiariti~e, eédition, 1950, tome 1,pp. 300
et suivantes; Rapport de la Commission du Droit international sur
les travaux de sa huitième session du 23 avril ail 4 juillet 1956,
Assemblée géiiérale, 1rmesession, supplément no 9 (A/3159), prcjet
d'article 29, pp. 26 et 27; Conférencedes Nations Unies sur le droit
de la mer, 24 février-27avril 1958, Documents officiels, volume IV,
p. 30 (exposéde IN.Wilfred Jenks pour l'O. 1.T.), pl>.38-39 (exposé
du professeur François),pp. 67-75 (débatgénéral)avec un exposéde
M. Gidel p. 68 et la proposition française d'articlc 29 rédigéepar
M. Gidel aux Annexes p. 127); voir aussi la documeiitation recueillie
dans l'ouvrage de 31.Claude Ilemaurex (Nouvelle Bibliothèque de
Droit et de Jurisprudence, Lausanne 1958). Selon l'opinion du

Gouvernement tle la République française il n'est pas nécessairede
l'aborder pour répondre à la question poséeà la Cour, pas plus qu'il
n'est nécessairede donner de définitionjuridique des autres notions
mentionnées dans la Convention: l'intérêt important dans les
questions de sécurité maritime, l'intérét à fourriir des services,
l'intérêt notable,etc. C'est dans l'appréciation soiivent complexe
de ces diverses notions que résidele pouvoir de choix confiépar la
Charte de toute institiition internationale aux organes qu'elle
établit.
Un dernier argument montrerait, si cela était iiécessaire, qiie
l'int$rprétation ci-dessus proposée est bien conforme aiix intentions
des Etats qui ont établil'Organisation. Le mêmearticle 28 qui fait
l'objet de la requête pour avis dit dans son alinéab): eles membres
du Comité de la sécurité maritime sont élus pour une période de
quatre ans et sont rééligibles ». Si ces mcmbres sont rééligibles,

certains des huit Etats qui possèdent les flottes les plus importantes
peuvent donc ne pas êtrerééluset cesser de siéger au Comité; à ce
moment il n'y aurait plus, dans cette hypothèse, au Comitéde la
sécurité maritime Ics huit pays possédant les flottes les plz~simpor-
tantes.Et cependant telle est bien la volontéesprirnée dans l'alinéa
4). Donc la coiiciusion est évidente, la seule obligation faite aux
électeurs par l'article 28 a) est de choisir huit pays parmi ceux qui
possèdent les flottes les plus importantes. On remarquera que le
texte de l'article 19 établit le mêmesystème pour la réélectionau
Conseil; les membres sortants sont simplement rééligibles.Si les
formules de l'article 19, les pays le filus intéressésà fournir des
services internationaux de navigation maritime et le plus intéressés
dans le commerce international maritime avaient une portée
absolue, il n'y aurait pas de sortie possible pour ces Etats du Conseil

de l'organisation. Le choix entre les États lepliis intéressésqui est
possible à la réélectionl'est aussi bieà la première élection.
Mais la démonstration que le Gouvernement de la République
française s'est proposéde faire dans le cadre mêmede l'organisation
qui a sollicitél'avis de la Cour trouverait une ample confirmation.
si cela était nécessaire, dans l'examen de la pratique d'autres
institutions internationales. EXPOSÉ ÉCRIT DU GOU~ERSE~IEST FRASÇ:\IS 31

II.- Examen de la pratique internationale.
L'intitulé mêmede la requêtepour avis dans la présente affaire
ne peut manquer d'évoquer le premier avis demandé à la Cour
permanente de Justice internationale. le 22 mai 1922: cSi le
délégué ouvrier des Pays-Bas à la 3rneConférenceinternationale du

Travail a étédésigni:en conformitédes disl~ositionsdu paragraphe 3
de l'article 389 du Traité de Versailles? iiLa Cour a donc interprété
cet article: eLes Membres s'engagent à désigner les déléguée st
conseillers techniques non gouvernementaux d'accord avec les
organisations professionnelles les plus représentatives soit des
employeurs, soit des travailleurs du pays considéré,sous la réserve
que de telles organisations existent. 1,La Cour a considéréque les
mots les plzrs représe,ttativesn'obligeaient pas à se mettre d'accord
avec totrtes les organisations les plus représentatives (Recueil des

Avis conszdtatifs,Série B, no 1, p. 24) et qu'il fallait, d'une manière
raisonnable, assurer le choix de personnes représentant réellement
les masses ouvrièrcs intéressées.Aujourd'hui, les intérêtssont plus
divers et les travailleurs ne sont pas les seuls mentionnés dans les
statuts de l'organisation, mais les principes (l'interprétation posés
en 1922 par la Cour demeurent valables; le choix de l'Assembléeou
du Conseil parmi les États membres, dans les conditions déterminées
par la Charte de l'Organisation,doit s'inspirer d'une e interprétation
raisonnable » (avis di1 31 juillet 1922, Keczreil,p. 22), aboutissant

au choix de pays répondant effectivement aux intérêtsdéfinispar
cette Charte.
Une institution, bien proche dans ses biits de l'organisation,
l'Organisation internationale del'Aviation civile (ci-aprèsO. 1.A. C.)
montre dans sa constitution des traits qui rappellent les dispositions
de la Co,nvention de Genève du 6 mars 1948. L'assembléedoit élire
les 21 Etats membres-du conseil en donnant une représentation
appropriée: i<I) aux Etats d'importance majeure en matière de
transport aérien; 2) aux Etats, non représentéspar ailleurs, qui

contribuent le plus à fournir des [acilitéspour la navigation aérienne
civile internationale; et 3) aux Etats, non représentéspar ailleurs,
dont la désignation assure la représentation au Conseil de toutes les
principales régionsgéographiques du monde ,I(article 50. alinéa b).
de la Convention de Chicago du 7 décembre 1944).
États qui co~rtribz~er itpl%ts,la formuleest identique à celle de la
deuxième phrase de l'article 28 de la Convention du 6 mars 1948,
quelle fut donc son interprétation par 1'0. 1.A. C. ?

La répartition en catégories n'a pas étéconsidérée commecréant
une obligation pour les candidats de choisir leur catégorie ni de se
limiter à une catégorie. Le règlement intérieur a décidéque toute
candidature est valable pour les trois catégories. L'article 57,
alinéa a), de ce règlement décide: <iLe nom d'un État contractant
non éludans la première catégorieest automatiquement reporté,sur
la liste des candidats de la deuxième catégorie. Le nom d'un Etat
contractant qui n'a pas étéélu ni dans la première ni dans la32 EXIJOS ÉCRIT uu GOUVI~RSEDIENT FRANÇAIS

deuxième catégorie est automatiquement reporté sur la liste des
candidats de la troisième catégorie.» Lors de la xomesession de
l'Assembléede l'O. 1. A. C. la délégationdu Venezuela soutint que
cet article 57 a) du règlement était incompatible avec l'article 50,
alinéa b), de la Convention de Chicago; les débats montrent que
l'opinion la plus généralefut d'interpréter l'article 50, alinéa b),
comme une directive à l'adresse des électeurs et non pas comme
l'expression d'un droit de l'État remplissant les conditions énoncées
d'obtenir un siègeau Conseil (cf. O. 1.A. C., document A. ro \VP/
150. pp 48-j6, et le commentaire dans l'.4nnc~airefrançais de Droit
international. 1gj6, pp. 646-6jo).
Si l'interprétation ainsi donnée au sein de l'O. 1. A. C. était
contestée, les électionà cette organisation devraient êtretenues

pour irrégulièreschaque fois que le vote des électeurs ne se serait
pas porté sur les Etats qui contribnertfle plzrs... et il faudrait alors
se poser la question des référenàeutiliser pour opérerleclassement
entre ces États en mème temps que celle de leur opposabilité juri-
diqne aux intéresséset à l'organisation.
II semble donc au Gouvernement de la République française que,
à la lumièredes textes créant l'organisation et de la pratique inter-
nationale, sans avoir à entrer dans le détaildes désignations qui ont
étéfaites au Comité de la sécurité maritime, le 15 janvier 1959,
cette électiona étéconforme aux directives poséespar l'article 28
de la Convention de Genèvcdu 6mars 1948. 3. LVRITTEN STATEMENT OF THE
GOVEKNMENT OF LIBERIA

Part 1

I. Introductory

The Court has been reqnested by the Assembly of the Inter-
Governmental Maritime Consultative Organization (hereinafter
called "I.M.C.O.") ',in accordancewith Article 56of the Convention
for the Establishment of I.M.C.O. of March 6, 1948 a (hereinafter
cailed "the I.M.C.O. Convention"), to give an Advisory Opinion
on the foilowing question:

"1s the Maritime Safety Committee of the Inter-Goirernmental
MaritimeConsultative Organization, which was elected on 15 Janu-
ary 1959, constituted in accordance with the Convention for the
Establishment of the Organization?"

By Article IX (2) of the Agreement between the United Nations
and I.M.C.O., which camc into force after its approval by the
Assembly of I.hI.C.0. of January 13, 1959 3,the General Assembly
of the United Nations, in pursuance of Article 96 (2) of the Charter
of the United Nations, anthorized I.M.C.O. to request advisory
opinions of the International Court of Justice on legal questions
arising within the scope of its activities.
The present Statement is filed by the Government of Liberia in

accordance with the terms of the Order of the Court of August 5,
1959, fixing the time-limits for the presentation of wntten state-
ments.

II. The Background

A. Article 28 of theI.M.C.O. Convention
The election to the Maritime Safety Committee on January 15,
1959,was held in pursuance ofthe terms of Article 28, paragaphfa),
of the I.M.C.O. Convention, which provides as follows:

' IMCO/A.IIR~~. A.12(1).January 19. 1959.
2 Article 56 provides as follows:
"Any legal question which cannot be settasdprovided in Article 55 shall be
referred by the Organization to the International Court of Justice for an Advisory
OpinI.M.C.O. Assembly, First Session, Summary Record of the Sixth Meeting,."
IMCOIA.rISR.6, pp. 7-8.

434 WRITTEN STATEhIENT OF THE GO\'ER?*.\IE'IT OF I.IBERI.4
"The MaritimeSafety Committee shall consist of fourteen Mem-
bers elected by the Assembly from the hlembers, governments of
those nations having an important interest in maritime safety, of
which not less than eight shall be the largest ship-owningnations,
and the remainder shall be elected so as to ensure adequate repre-
sentation of Blembers,governments of other nations with an im-
portantinterestin maritimesafety, such as nations intercsted in the
supply of large numbers ofcrewsor in the carriage oflarge nurnbcrs
of berthed and unberthed passengers, and of major geographical
areas."

B. The Issues

The particular issues which have arisen relate principally to the
election of those eight members of the hlaritime Safety Committee
chosen in pursuance of the phrase in Article 28 (a) :"of which not

Iess tlian eight shalI be the largest ship-owning nations".
By its tcrms. Article zS (a) clearly distinguishes between two
groups of members of the Maritinle Safety Committee: those who
are elected as the eight largest ship-owning nations (and who may
for convenience occasionally be called "the eight") and the remainder
who are elected so as to ensure the adequate representation of other
Members of the Organization and by reference to such criteria as
interest in the supply of large niimbers of crews and in the carriage
of large numbers of lnssencers, or the represeiitation of major
geographical areas. -
In the view of the Government of Liberia. the effect'ofthc distinc-
tion th& drawn and of the terms in which it k made is to place
upon the Assembly a mandatory duty to elect to thc Maritime
Safety Committee the governments of those eight nations at least
which are "the largest ship-owning nations". The reference in

Article 28 (ajto the possession of "an important interest in maritime
safety" applies equally to the election of "the eight" and of "the
six"; and is so broad that taken by itself it can scai-celyqualify the
positive obligation, as regards the election of the first category of
members of the Maritime Safety Committee, to select only those
nations which really are "the largest ship-owning nations" and
not others.
For the purpose of identifying the eight it is, of course, necessary
to apply some criterion for the measurement of the size of a
ship-owning nation. The appropriate criterion, the Govem-
ment of Liberia contends, is that of registration, i.e. reference
to the quantity of tonnage which appears on the national register
of anv ~articular Member. This criterion is exclusive: and it is
objeciivé.
By reference to it, Liberia ranks third in size among ship-owning

nations. On December 31, 1958, 1,073 vessels flew the Liberian
flag and their total gross registered tonnage was 11,074,559'tons. WRITTEN STATEIIENT OF THE GOVERNlIENT OF LIBERIA 35

On this basis alone then, the Government of Liberia was entitled
to election to the Maritime Safety Committee'.
\Vithout prejudice to its position in relation to the adoption of
registration as the relevant criterion, the Government of Liberia
also refers to another possible test of size, namely, that of the
quantity of shipping owned by the nationals of Members. Applying
this criterion to the Liberian merchant marine, the position, as at
December 31, 1958, was that 514 ships, totalling 6,076,030 gross
registered tons, were registered in the name of Liberian nationals,
whether individuals or companies. Had this test been applied in the
election to the Maritime Safety Committee, Liberia would have
ranked fifth among nations and would thus have been entitled to
election.

If, therefore, the validity of the election to the Maritime Safety
Committee depends solely upon the election bythe Assembly of the
correct blembers tested by objective and exclusive criteria, it is
clear that the Maritime Safety Committee elected on January 15,
1959, is not validly constituted.
However, the matter does not rest there. The validity of an
election must be tested not only by reference to substantive
criteria but also by reference to conformity with procedural require-
ments. As the Government of Liberia repeatedly pointed out
during the course of the election, there was no evidence before the
Assembly upon the basis of which members of that body could apply
any criterion other than that of registration. Therefore, since the
.4ssembly, by failing to elect Liberia and Panama to the Committee,
must be deemed to have applied some criterion other than registra-

tion, it must have done so on the basis of no evidence whatsoever-a
basis which clearly cannot be compatible with the due exercise of
a power dependent upon objective criteria.
In addition, as the Government of Liberia will in due course
elaborate, the conduct of the election was such as to give rise to a
clear inference that the States which voted against Liberia were
guilty of a détonrnementde $onvoir in the use which they made of
their power.
In short, the question before the Court, couched as it is in terms
of the validity of the election to the Maritime Safety Committee,
raises two distinct classes of issues: (i) the issues relating essentially
to the interpretation of Article 28 (a) of the I.M.C.O. Conven-
tion, and (ii) the issues arising from the manner in which the
election was conducted. Each of these two groups of issues will be
examined by the Government of Liberia in the course of the present

Statement.

' Similar considerations appear to apply to the Government of Panama. How-
ever, having regard to the fact that the Government of Panama will no doubt
be presenting its own Statement to tCourt,the Government of Liberia will
confine its observations in the present Statement to its own position. WRITTEN STATE~IENT OF THE GOVERNMEXI. OF LIBERIA
36
C. The cuzcrse ofthe electiontu the Maritime Safety Committee,

January 13-15,1959
Before turning to examine in detail the issues referred to above,
it may be helpful if the Government of Liberia first sets out the
actual course of the events which may be described as "the election
of the Maritime Safety Committee".

The election of the members of the Maritime Safety Committee
was listed as Item II of the Provisional Agenda of the Assembly l.
This Agenda was adopted at the first session of the Assembly on
Tuesday, January 6, 1959 %.
No further overt steps were taken in connection with the election
until January 13, 1959.
However, for some days previous to January 13, 1959, reports
had reached the delegation ofLiberia that the so-calied "traditional"

maritime nations, which included the United Kingdom, Norway,
the Netherlands, France and Italy, were preparing to exclude
Liberia and Panama from the Maritime Safety Committee. The
motive underlying any such development would appear to have
been the impleinentation of their declared policy to eliminate by
al1 means the competition emanating from shipping of the non-
traditional States. In short, an eco~iomicand commercial controversy
was to be introduced into the election of a technical body, the

Maritime Safety Committee.
The delegation of Liberia, though aware of the sentiments of the
traditional maritime governments towards the non-traditional
maritime governments, was not, at first, prepared to give credence
to rumours which, if true, would have meant that the governrnents
concerned werc, as the delegation of Liberia saw the matter,
preparing to violate the clear, express and mandatory requirements

of Article 28 (a). Nevertheless, so that doubts might be eliminated
and confidence bc established, the Government of Liberia prepared
and deposited with the Secretariat on the morniug of January 13,
1959, a draft resolution of which the operative part provided "that
for the purposes of Article 28, the eight largest ship-owning nations
shall be determined by reference to the figures for gross registered
tonnage as they appear in the issue of Lloyd's Register of Shipping
current on the date of election" 3.

At about the same time as the delegation of Liberia filed its draft,
there was bcing circulated by the Secretariat a IYorking Paper
containing a list of the members of I.M.C.O. arranged in the order
of the quantity of gross tonnage registered in their territories. The
figures of tonnage were taken from Lloyd's Register of Shipfiing

II\ICO/A.I/Z/R~ . .
SeeI.M.C.O . ssembly, First Session, Sumrnary Record of the First bleetin~,
January 6, ,959IXCO/A.I/SR.I p. g.
IA1CO/A.r/ll'odringperl3.per S. WKITTEN STATEYENT OP THE GOVERXIIEYT OF LIBERIA 37

Statisticnl Tables,1958 On this list Liberia appears in the third place
and Panama in the eighth place.
On the same day, though shortly afterwards, there was circulated
a draft United Kingdom resolution l relating to the conduct of the
election for the first eight places in the Maritime Safety Committee.
The operative part of this resolution was worded as follows:

"that a separate vote shall he taken for each of the eight places in
the Committee,
that the voting shall be in therder in whichtlic nations appear in
the Secretary-General'slist and
that those eight nations which first receivea majority of votes in
favour shall lie declared elected".
The tabling of thisdraft resolution was the first open confir~nation
which the delegation of Liberia received of the rumours which had

earlier been heard.
The principal element in the United Kingdom draft resolution
\\,hich caused concern to the delegation of Liberia was the fact that,
despite the clear indication given in the Secretary-General's list of
the identity of the eight largest ship-owning nations when tested
bythe objective and exclusive criterion of gross registered tonnage,
the United Kingdom had proposed not to elect the first eight names
on the list en bloc,but to consider them individually. This suggested
to the delegation of Liberia either that the delegation of the United

Kingdom didnot regard the election of the eight largest ship-owning
nations, determined by reference to gross registered tonnage, as
mandatory or that it considered that it was entitled to introduce
alien and subjective criteria into the election. The proposa1 of a
procedure allowing a separate vote on each Member was regarded
as intended ta enable the United Kingdom delegation and others to
discriminate against Liberia and Panama. -4s events established,
the procedure proposed by the United Kingdom was in fact
employed for this very purpose.
Nor \vas the doubt with which the delegation of Liberia regarded

the United Kingdom proposa1 in any way diminished by the fact
that the United Kingdom delegation, though playing an active role
in procedural matters, was apparently unconcerned to make
proposals for regulating the procedurally more complex matter of
the election of the remaining six members of the Maritime Safety
Committee.
In the light of its assessment of the motives underlying the ,
United Kingdom proposal, the delegation of Liberia determined
that the issues inherent in the United Kingdom draft should be
raised before the -4ssembly in the clearest way prior to the actnal

holding of the election. In fact, nothing further was done on Janu-
ary 13. Agenda item IIwas not reached until nearly the end of the

IhlCO:A.~/WorkingFaper 6.
a IAlCOiA.~/Working Paper 5. IYRITTEN STATEXENT OF THE GOVERNSIEST OF I.IBERIA
38
afternoon and, at that point, the representative of the United
States of America proposed that the matter should be postponed

till the next day.
On IVednesday, January 14, the Assembly began the discussion
of the election of the Maritime Safety Cornmittee against a some-
what confused procedural background. By that time the Assembly
had before it not only (i) the United Kingdom and (ii) the Liberiari
draft resolutions of January 13 ',but also (iii) a United Statesdraft
resolution dated January 13 for the establishment of a Provisional

Maritime Safety Committee 2.
The discussion was opened by the delegate of the United
Kingdom 3. The next speaker \vas the representative of Liberia 4,
whose speech is of significance in that it laid before the Assenibly
the views of the Government of Liberia upon the principal issues
now before the Court. Moreover, it is worthy of ilote that the
delegate of Liberia, having taken his stand upon a legal inter-

pretation ofArticle z8(a) ofthe Convention, atthe outset proclaimed
his willingness and deçire to seek judicial determination of the
disputed issues. Indeed, he indicated in terms the questions which,
in his vietir, rvere at that time the ones on which his Government
would have liked the Assembly to seek the opinion of the Court 6.
In the course of this speech, the delegate of Liberia proposed certain

amendmentsa to the United Kingdom draft resolution '.
The debate continued with speeches by the delegates of Xorivay,
Panama, the United States of America, the Xetherlands, the
Dominican Republic, lndia and Belgiiim. In the course of the
aftemoon of January 14,the United States proposal forthe establish-
ment of a provisional Maritime Safety Committee \vas rejected by
14 votes to 12, with 2 abstentions

The debate was resumed on the morning of January ~j, Igjg
The first speech was niade by the delegate of the United States of
Amenca, who introduced the text 'O of a consolidated amendment
proposed by the United States and Liberia to the United Kingdom
draft resolution ". He was followed by the delegates of the Nether-
lands, the United Kingdom, the Dominican Republic, Panama and

Liberia. The vote was then taken on the consolidated text of the
Liberian and United States amendments Io,which was rejected by

' IMCO/A.~/\\'orking Papers6 and8
1MCOIA.rIWorkine Paoer 7.
SeeI.M.c.~ ~ssembl~,'~irit Session, Sumniary Record of the SeveMeeting,
January 14. 1959, IMCOIA.r/SR.?.p. 2.
Ibid.. od.
Ibid.p. i.
IBfCOIA.~/\h'orking PapeIO.
IMCOIA.r/Working Paper 6.
IMCO/A.I/SR.~., pp. II-rz.
IMCO/A.r/\5'0rking PaperII.
InlCO/A.r/\liorkinPaper 6. WKITTES STrVr1:All:N OF THE GOVERN.\II:NT OF LIBEHlr\ 39
17 votes to II. At that point, the delegate of Liberia once again

repeated his suggestion thrit the issues which had been raised should
be referred to the Court by way of a request for an Advisory Opinion.
He proposed that until the Opinion of the Court was received, the
work of the Maritinie Safety Committee should be carried on by a
subsidiary body established by the Assembly under the powers
conferred in Article 16 (c) of the I.M.C.O. Convention1. The

I'resident of the Assembly ruled, however, that the voting on the
United Kingdom draft resolution should proceed forthwith 2. The
United Kingdom draft resolution was then adopted by 18 votes to 9,
with I abstention 3.
Thereupon, the .4ssembly proceeded to vote on tlie eight countries
to be elected to the Maritime Safety Committee according to the

procedure proposed in the United Kingdom resolution. The United
States of America was elected first, by 27 votes to none, with one
abstention (Argentina) '. The United Kingdom was elected second
by the same vote6. The third vote was on Liberia. The vote \+.as II
in favour, 14 against, with 3 abstentions6. Accordingly Liberia was
not elected amember of the Maritime Safety Committee. The voting

then proceeded in the order of the Secretary-General's list, but in
dl subsequent votes Liberia and Panama abstained. When its turn
came, Panama. like Liberia, was not elected 7.The eight members
finally "elected" were: the United States of America, the United
Kingdoin. Xorway, Japan, Italy, the Xetherlands, France and the
Federal Republic of Gerniany.

Imniediately after the conclusion of the voting, the delegate of
Liberia statecl that in his view, as a result of the failure to elect
Liberia and Panama, the elections were nul1 and void. It was for
that reasoii that he hacl abstained from fiirther voting after the
vote on Liberia hacl taken place
Further explanations of voting by the delegations of the Soviet

Union, Honduras. Panama and Argentina were given at the opening
of the ninth meeting in the afternoon of January 15, 1959 '.
The Government of Liberia concluclesthis account of the election
of the Maritime Safety Committee with the following observation:
only seven States addressed themselves to the legal issues in their
speeches. Of these, two werc Liberia and Panama and one was the

United States, which supported tlie legal interpretation adopted
by Liberia and Panama. Of the speeches made by the remaining
four (the United Kingdoin, Norway, the Netherlands and the

' IhlCO/A.r/SR p.S,.
Ibid.. pg.
Ibid.p. IO.
' Ibid.. p12.
Ibid.. p13.
' Ibid.p. IS.
Ibid.. p21.
TMCO/A.i/SR. pp.2-3.40 \VRITïEN ST:\TE>IEXT OF THE GOVERS>LEST OF LIBERIA

Soviet Union). it is worthy of note that there was no unanimity of
view as to the appropriate criteria to be applied in the election.

Part II

THE INTERPRETATIO OF ARTICLE 28(a)

The Government of Liberia will first consider the issues connected
with the interpretation of Article 28 (a).
Article 28(a) provides as follows:

"The AlaritiineSafety Committee shall coiisist of fourteen Mcm-
bers electcd by the Assemhly from the >lembers, governments of
those nations haviiig an iinportant interest in m~iritimesafety, of
which iiot less than eight shall be the largest ship-owning nations,
and the remainder shallbe elected so as to ensure adequate repre-
portantinterest in maritimesafety, such as nations intcrcsted in the
supply of largeumbersof crewçor inthe carriage of large niirnbers
of berthed and unherthed passengers, and of major geographical
areas."

The Governtneiit of Liberia submits that the Maritime Safety
Cominittee is not constituted in accordance with the I.M.C.O.
Convention because in electing the largest ship-owiiing nations the
Assembly failed, in fact, to elect those eight which are the largest,
aç required by the I.M.C.O. Convention. The specific failure lay in
the non-election of Liberia and Panama \+,hich,by reason of their
registered tonnage, raiik third and eighth among ship-owning
nations.

The Government of Liberia siibmits also that the words "having
an important interest in maritime safety" do not create a controlling
independent condition. lt is, in any case, inherent in the quality of
being one of the eight largest ship-owvning States that the State
concemed has "an important interest in maritime safety".

1. TheMandatoryCharacter O/Article 28 (a)

The first aspect of Article8(a) which the Governrnent of Liberia
would mention is the mandatory quality of the reference to "the
largest ship-owning nations". The -4rticle employs the words
"shall be" in relation to "not less than eight" BIembers. The use of
the words "shall ben means that they "must be". Likewise, the
reference is tothe largest ship-owning nations. The Article does not
provide for an election from the eight largest ship-owning nations,
but for an electionofthe eight largest ship-oiming nations.
There is no warrant in this connection forregardiiig the use of the
word "election" in relation to the eight largest ship-owning nations
as diminishing the mandatory effect of the words "shall be" or as
confemng an element of discretion upon the States participating IVRITTEN STATEMENT OF THE GOVERX3IEXT OF LIBERIA 41

in the process of identifying the eight States concerned. The use of
the word "election" may be.explainedin two ways. In the first place,
it is necessary to have a point in time at which the relative size of
ship-owning States one to another can he determined. Statistics,
after all, can and do alter. If the requirement relating to the eight
were simply mandatory, it might also be automatic; and might thus

mean that the membership of the Committee could change between
elections if, for example, a ninth nation not on the Committee
espanded its shipping and moved up into eighth place. This
possibility is eliminated by the introduction of a formal process of
identifying the eight largest ship-owning nations which thus fixes
the moment in time at which relative size of ship-owning States is
assessed. That process is, for convenience, called "election". A
second possible explanation of the use of the word "clection" is that
it leaves open to the Assembly, on the basis of the freedom implicit
in the use of the words "not less than eight", the possibility. of

selecting not inerely eight, but more than eight, States on the hasis
of size, rather than by reference to the other criteria mentioned in
Article 28 (a).

II. The Largest Shifi-Owning Nations

A. The correctcriterion: registeredtonnage

The determination of the "largest ship-owning nations" mnst, in
the view of the Govemment of Liberia, rest exclusively on the
criterion of gross registered tonnage. Those nations-and those
nations alone-wh'ich are largest in terms of registered tonnage are
the largest ship-owning nations within the meaning of Article zS(a).

B. Considerations in sz~fifiortof "registered tonnage"
This view of the matter is supported by reference to the following
considerations :

I. Kegistratiurzis the most efective connection.
a. Relevaltcz of the doctrine oj efectiveness.

In interpreting a treaty, the Court should prefer that construction
which is most likely to further, or leastlikely to hinder, the achieve-
ment of purposes for which thetreaty was concluded. This principle
is an established feature of the jurisprudence of the Court in relation
to the interpretation of treaties generally and of international
constituent instruments in particular.Thus, in the Advisory Opinion
on the Acquisition of Polish Nationality 1,the Court said, in relation

to the interpretation which it proposed to adopt :
"If this were not the case, the value and sphere of application
of the Treaty would he greatly diminished. But in the Advisory
Opinion given witli regard to the questions put concerning the

1 P.C.I.J.. SeriesNo. 7. German colonists in Poland, the Court lias already espressed the
view that an interpretation which would deprive the Ninorities
Treaty of a great part of its value is inadmissible '."

The Court has applied this doctrine with p:lrticular effect in

interpretiiig the scope of the powers and functioiis of international
organs. In dealiiig with the powers of the Mixed Coinmissions uiider
the Greco-Turkish Agreement of Ilecember r. rgzG, the Court said:
"Al1 the doties iridicated above arc critrustcd to the Mised
Cominission as the sole authority for dealing with tlic exchange of
popplations, and special stress should be laid oii the fact that these
duties have heen entrusted to it witli tlie ol~ject among other
thiiigs of facilitating this exchaiige. It follows that any interpreta-
tion or mcasure capable of impeding tlie work of the Commission in

this domain must be regarded as the coiitrary of the spirit of the
clauses providing for the creation of this body *."
The same attitude permeates the whole of the Advisory Opinion

given by the Court on Repurations/or Injnries snfered in theService
O/ the United A7ations 3. Thus, xvhere the Court \+,asspeaking of the
capacity of the United Xations, it said:
"lt must be acknowledged that its Members, by entriisting
certain functions toit, \*<ththeattendant dutiesand responsibilities.
have clothed it with the compcteiice reqiiired to enahle those fiinc-
rions to be effectively discharged4."

Again, in referring to the obligations of the klembers of the

United Xations, the Court said:
"It must be noted that the effective working of tlic Orgariization
-the accom»lishment of its task. and the iiideneiidence and effec-
tiveness of the work of its agents-rctliiire tliat'tl~csc iindertakings
should be strictly observed'."

b. The application of the doctrine O/ eflectiueness.

In the light of this approach to thc intcrprctation of treaties, the
Government of Liberia submits that the contents of the I.M.C.O.
Convention shoiild he construed in a nianner whicli is most likely
to further the purposes of I.M.C.O. generally and, where the contents
relate to the Maritime Safety Cornmittee, to tlic purposcs of that

Committee in particular. As regards the expression "the largest
ship-owning nations", the interpretation hest suited to achieve the
purposes in\rol\red is one \\.hich identifies it with "the nations in
\\,hich the largest quantity of tonnage is registered".

At pp. 16-17.
InlarprctolionO/ theGreco-TurkirliA,oreemenl O/ Dcrenrber r, rpG. P.C.I.J..
Series B. No. iG,nt p.rS.
IAt.p. 179.rfs1949. p. 174.
* At p.'Rj. \$'RITTEK STATEMENT OF THE GOVERNMEST OF LIBERIA
43
The validity of this consideration may best be established by an
examination, first, of the objects of I.M.C.O. and of the Maritime

Safety Comrnittee and, second, of the legal consequences which flow
from the link of registration.
i. The pzlrpose of the Maritime Safety Committee.

The purposes of I.M.C.O. areset out in general terms in Article I
of the Convention. Detailed reference to these purposes is, however,
unnecessary. So far as maritime safety is concerned, the only
relevant provision is in paragraph (a) of Article I :

"The purposes of the Organization arc: (a) ..to encourage the
general adoption of the highest practicahle standards in matters
concerningmaritime safety and efficiencyof navigation."

Theduties ofthe Maritime Safety Cornmittee are more particularly
defined in Article 29 (a) in the following terms:
"The MaritimeSafety Committee shall havethe duty of consider-
ing any matter withiri the scoyeof the Organization and conccrned
with aids to navigation, construction and equipment of vcssels,
manning from a safety standpoint, rules for the preventioii of
collisions, handling of dangerous cargoes, maritime safety proce-
dures and requirements, liydrographic information, log-books and
navigational records, marine casualty investigation, salvage and

rescue,and anyothermatters directly affectingmaritime safety."
The Maritime Safety Committee is also directed, by Article 30,
among other things, to submit to the Assembly proposals made by

Members for safety regulations or for amendments to existing
safety regulations, together with its comments or recommendations
thereon.

ii. Registration aizd the impleinentation of the purposes of the
MaritiwzeSafety Committee.
In the submission of the Government of Liberia, it is clear that
the implementation of an. recornmendation which the Maritime
Safety Committee may make will depend upon action by the

individual members of I.M.C.O. Indeed, the close connection
between the effective achievement of the objects of I.M.C.O. and
the capacity to implement its recommendations was stated by the
United Kingdom Delegate to the United Nations Maritime Con-
ference of 1948in the following terms: "What wasessential was that
the Organization's recommendations should have the support of
the countries which were calledupon to implement them. Otherwise,
they would be valueless" 1.

There rnay, of course, be some few matters within the purview
of the Maritime Safety Committcc which could be dealt uith by
States on a territorial basis. Generally, however, in relation to
United NationsMaritime Conference. Geneva, Februar19- filarcq,1948.
Revised Sumrnary Records.U.N. dociimentEiCOXF.4JSR. Revised, p27. WRITTEX ST.ATEJIEST OF THE GOUERS31EST OF LIBERIA
H
items within the competence of the Maritime Safety Committee, it
is clear that the progressive development and application of im-
proved standards must depend upon tlieir incorporation into and

enforcement by the "personai" la\v of the vessel-the law to which
it remains permanently subject regardless of its location. This law,
in the subrnission of the Government of Liberia, is the law of the
State in wliich tlic vessel is registered.

aa. The law of the place of registratio?zas the law of theship.
It is an almost incontestable proposition that the persond law
of a vessel is that of the State in which it is registered. Admittedly,

the authorities frequently speak of "the la\\! of the flag" or "the
national law" of the vessel as being its persoiial la\\,. But there can
be little doobt that in such cases the fact of registratioii has simply
been assumed as the basis of the right to fly the flag or of the posses-
sion of nationality l.

(1) Internatioi~aljztdicinl decisions. The principle that it is the law
of the flag-beiiig the law of the place of registration-which
governs the conduct of a vessel and those on board her on the high
seas has bcen clearly stated by the Permanent Coiirt of International
Justice. Thus in the case of the S.S. Lotus, the Court said:

"lt is ccrtainly true that-apart froni certain specialcases which
are defined hy international la\\,-vessels on the highseasarc subject
ta no authority excejltthat of the Stnte whoseflagthey fly.In virtue
ofthe priiicil~leofthe freedomof the seas, that is to say, the absence
of any territorial sovereignty upon the high seas, no State may
esercise any kind of jurisdiction over foreign vesselsupon them.

(2) The practice of States-statewients by Governiiteitts. One episode
shows witli striking clarity the general ncknowledgment by States
of the proposition that it is the national State of the vessel, as
opposed to the State of wliich her owners may be nationals, which
enjoys the cxclusivc right to control the vessel.
Uuring thc 1:irst \\'orld War the United Kingdom sought to
reqiiisition a numbcr of vessels registered in the Net.herlands, on the
ground that though they were owned by companies incorporated

in the Netherlands, they wcre redlp the property of British subjects
who, as sliareholders, had invested capital in these companies. The
Xetherlands Governnient protested against the proposed action
in the follo\\ring tcrms:

directe aux droits des Pays-Ras, car c'est ledu rGouverneinent néer-

' Of pacticular rçlevaiiasan illustration of this fusioii of ideas between regiç-
tration and nationalitsee the following observation in CrilombLaw of theSen
(3rd ed.)p. 216: "Every State has the right to entct regulations setting out the
conditions under which it will grant registration at its ports. and consequently
it' P.C.I.J., Sevies A, Nio,hatp."25. WRITTEN STATEALE'IT OF THE GOVERTAIENT OF LIBERIA
45
landais seul,à l'exclusionde tout autre, qui est libre de réquisitionner
dcs navires hattant pavillon néerlandais. L'unique cas où la réquisi-
tion par uii belligérant serait admissible est celui d'absolue néces-
sitémilitaire. Le droit des gens n'en connaît pas d'autre ...Il suffit
de constater qu'en vertu du principe susdit, c'est le pavillon seul ct
non le propriétaire qui entre en jeu pour déterminer la place que
le navire occupe comme sujet du droit international ...
Si, toutefois, le Gouvernement britannique veut bien se rendre
comptc des conséquencesqu'aurait pour la navigation internationale
l'adoption d'une règled'après laquelle la nationalité de la majorité
des actionnaires - d'ailleurs souvent inconnus - d'une société à
laquelle appartient un bâtiment de haute mer constituerait le cri-
térium de la nationalité du navire même,il ne pourra manquer de

s'apercevoir à quel point sa décisionrécente est contraire au prin-
cipe très rationnel qui régit la matière...1"
It may be noted that in a later note, the British Government in
effect acquiesced in the view expressed by the Netherlands Govern-

ment. The United Kingdom reply stated that "His Majesty's
Government do not base their right to requisition these ships upon
the fact of their being actually British-owned or controlled ..."2.
(3) The practiceofStates-judicial decisions.There are also numerous

decisions of municipal courts which acknowledge the controlling
force of the law of the place of registration. Two of the most striking
have been given by the courts of the United Kingdom. In the
course of his judgment in Reg. v. Keyn (The Franconia), Cockburn,
L.C.J., said:

"... by the receivcd law of every nation a ship on the higli seas
carries its nationality and the law of its own nation with it, and in
this respect has been likened to a floating portion of the national
territory. Al1on board, therefore, whether subjccts or foreigners,
are bound to obey the law of the country to which the ship belongs,as
though they were actually on its territory on land, and are liable
to the penalties of that law for any offence committed against it ...
... On board a foreign ship on high seas, the foreigner is liable to
thc law of the foreign ship only. It is only when a foreign ship comcs
into the ports or waters of auother State tliat the ship and those on
board become subject to the local law. These are established rules
of the law of nations. They have becn adopted into our own muni-
cipal law, and must be taken to form part of it.3"

Again, in the case of M. Isaacs and Sons, Limited, v. William
~McAllumand Company, Limited, it was held that a change in a
vessel's flag after entering into a charterparty was a material
change in the subject-matter of the contract and entitled the
charterer to damages. In reaching this conclusion, Kowlatt, J.,

' Note froniD.1L.oudon to SirXI'.Townley, June II,1917. Britis h~d Fo:oueig~
Stat~Papers, Vol. IIIpp. 466-468.The episode iç discussed in Rienow. TheNation-
olilyofo Marchant l'esse1 (1937). pp. 100-ro3.
a Mr. Balfour toSir W. Townley, July 18,1917. Ibid.p.p.468.469.
[1876]2 EX. Di 63,at p. 161.made the following observations upon the relevance of the flag, i.e.
registration, ta the operation of the ship:

"1 do not thinl<it could possibly be held that it makcs no differ-
ence under what flag a ship sails. Tlie law of the flag is of direct
importance as affecting the status of the ship. It is also of impor-
tance in its collateral effects,as, for instance, in determining the
nationality and therefore to somc estent the discipline and morals
of the crew and in many other respects. '"

That these are not isolated decisions or, on this particular point,
in any way contrary to the current of authority may be readily
ascertained by reference to the cases cited by Lord Mch'air in Legal
Eflects of War (3rd ed., 1948) p,ages 440-445.

(4) The practice of inter?zational organizations. The particularly
close connection hetween registration and the law applicable on
board ship is also reflected in the practice of tlie International
Labour Organisation. In 1936, the Organisation inserted into those
labour conventions dealing with maritime matters a reference to

registration as the hasis foridentifying a ship with a State.Dr.Jenks
has explained the decision of the I.L.O. not to employ the concept
of nationality for this purpose in the following terms:
"Nationality might be thought to refer not to the flag flown,
theright to fly a particular flagbeing normally, as documentsbefore
the Committee showed, determined by registration, but to the
nationality of the ownership and control of the vt:ssel, and pcrhaps
even to the nationalitv of the real as distinct from the anvarent

employment on board, and that the criterion defiiiing the obliga-
tions to be assumed by States must necessarilycorrespond with that
which, under general rules of intcrnational law, dclimits the extcnt
of their powers of control. 2"

(j) Writers ofauthority. These observations are reinforced,moreover,
by the views of writers of authority. The following extracts may
be referred to in this connection:

Gidel: "Par le fait au'ils relèvent chacun d'un État déterminé.le~.
ii,,\,irt .SC,Iuiinii>:I (l$.oi~trî,81~ la prt d,;1'I::tatdo111II>porrciit
IL ~~~illnn:11ss<,iita?trcints, :i~1x1~:CC-II:,II~I~I],I~I6 I1~:,hlic lrar
Ici ]disCI Icir<'~'I<:nlvn LII.I'1:tndi1iiavilloii:,IIi:;1.dc in~ ~ ~ii.iis-
sance des I>resczptionsde cet État, i1s;'exposkt à des sanctions ...a-
~ppenheim: "It [a state] can in particular authorize such vessels
to sail under its flag as are the property of foreign subject;but such

[1921] 3 K.R. 377, atp. 386.
the Scope of Maritime Conventions", Journal of Comparative Legisloiion. Vol. XIX
(1937).p. 245, at p.249. Dr. Jenks was a legal adviser to the I.L.O. at the time.
Le Droit infernafionol publde la Mer, Val.1 (1932).p. 73. \\'RITTES ST.4TEXIEST OF THE GOVERNXIENTOF LIBERIA 47

foreigii vesscls sailing under its flag fall thcreby under its jurisdic-
tion... I'rivatc vcssels are considcred as though they were Roatiiig
portions of the flag State only in so far as they remain whilst on
the open sea in principle under the excliisive jurisdiction and pro-
tection of the flag state. Thiis the hirth of a child, a \vil1or busiiicss
contract made, or a crime cornmittcd uii board ship, and the like
are considcred as happening ori the territory, and thercfore iindcr
the territorial supremacy, of the flag State '."

Hall: "It is unquestioned that in a general way a State has the
rights aiid the responsibilities of jiirisdiction over ships belonging
to it whilc thcy are upon the open sea. biit a difference of opinion
esists as to tlie theoretical groiiiid iipon wliich the jurisdiction of
the State oiight to be placed ...a-
Colomhos: " ... as regards the coinpetence of Courts to deal with

qiiestions arising in merchant ships on the higli =as, it is a gencrally
recognized rule that the flag-State of the vesse1is competcnt to deal
with al1matters, civil and criiiiinnl, which originate in tlie sliip

Similar vicws rnay be found in the works of Antokolel', Fauchille6,
Ladreda B, Ruiz Xoreno ', Podesta Costa ', Rousseau and Judge
Spiropoulos 'O.

bb. The exclrislve charncter O/ the jrrrisdiction

of the State oj registralioiz.
There is another feature of the jurisdiction of the State of
registration upon which the Government of Liberia considers that

it is desirable ta lav emphasis. The State of registration does not
rnerely have a cornfietence to regnlatc conduct on board one of its
ve~~cls: .t nAsscsscs. ai least in its own waters and on the hieh seas. -
an exclusive competence. In relation to vessels, the application of
the municipal law of the State outside its own waters is restricted to

those vessels which arc registered within that State and are, for
that reason. considered as "national" vessels. This element of
exclusiveness has been referred to in the following terms:

"The most important of the ciistomary riiles is that every State
has exclusive jurisdiction ove1 ail the ships which fly its Rag ...
every State is at liberty to determine for itself the conditions undcr
whicli it willpermit the use of its flag ..011the high seas the national
jurisdiction is exclusive, in the sense that evcry act which takes
place on board a ship isgoverned sulcly I>ytlie civil and criminal

1 Internntionul Law. Vol. 1 (6th ed.. 1955). ]>p.595 and 5g7.
Inlernnlional Law (8thed., 1924). p.301.
Law of lheSen (3rd ed., ,954).p. 234.
4 Tnlodo de Derecho Inlernocianl Ptiblico (3rd cd.). III(1941). p. 18. 5 319.
"roité de droil inleriralionel publ1c(2).(igrj). ]>p.9'5.931; II (1921).p. 998.
* Tratado dc Dcrecho lnlemncionol Piiblico (1926). 1. pp.193-198.
a Monunl de Dcrecho I>~UrnocionalPtiblicobZi(1943).pp..140-14'-54 and 73.
Droit irrfernotio>rolpubli(1953).pp. 417-416.
10 Traite thdoriqireel pratique du droit inler>zalionalpu(1933).pp. 157, 168, iG9-48 \\'RITTEX STATE>IEST OF THE GOVERXNEXT OF LIBERIA

law of the flagState and issiibject to the jurisdiction of the national
courtsl."

c. Co~zclz~sion M.nritinzesafety and thelnw of tlie
place of registrntion.
The conclusion which flows £rom the authorities cited above
hardly requires elaboration. If, for the purpose of interpreting the

expression "the largest ship-owning nations", it is relcvant to
consider what interprctation is inost likely to advance the cause of
maritime safety, it is manifest that registration rather than owner-
ship is the relevant consideration. Xo matter how many conventions
are concluded on maritime safety, their enforceability in relation
to any particular vesse1on the high seas ultimately depends upon
the laxv of the Statc of rcgistration. This is a juridical fact which
cannot be disregarded. The law of the State of the owner, if it is not
the same State as that of registration, is for ail practical purposes

totally irrelevant. Indeed, emphasis upon it in the context of
maritime safety is more likcly to hinder than aid developmcnt in
this vital field.

2. Prevniling i?lter>lational racticeisbased on registratio~t.

The second consideration upon which the Government of Liberia
relies assupporting its contention that the content of the expression
"ship-owning nation" is dependcnt on registration follows closely
upon the first. Reference to the practice of Çtatcs, as manifested in
international conventions, indicates that registration, rather than
any other criterion, is generally employed as the bais for deter-
mining tlie vessels to which the treaty commitments of a State

extend.

a. Mzrltilnterriltreafies,
In order to ascertain more specifically the nature of the inter-

national practice on this matter, the Govemment of Liberia has
examined the principal multilateral maritime conventions concluded
since the First M'orld War. Two conclusioiis of significance may be
drawn £rom an analysis of this kind. The first is that the test of
registration is iiow specifically employed in the major international
conventions of a tcchnical maritime character, such as safety of
life at sea and the polliition of the sea by oil. The second is that in
those cases wliere "registration" is not specifically employed to
describe the relationship between the State and its vessels, the

wording of the convention is nevertheless usually open to the inter-
pretation that registration is the appropriate coniiecting factor. In
no case does it appear that any specific refere~ice is madc to any
other connectiiig factor.

Smith. Lam andCitslorO/Ihc Seo(2nded..1950)p.p.46 and 49. \VKITTES ST.4TI:)IEST OF THE GOVEKNIIEST OF I.IBERIA
49
i. Express refereizces ta registration. It is signifiant that those

conventions which refer cxpressly to "registration" as the connecting
factor are the ones of a technical character, usually requiring some
measure of legislativc action by a flag State in relation to its vessels.
This is true, in particular, of the Convention for the Safety of
Life at Sca, June IO, 1948. Article II of this Convention provides
as follows:

"Tlie sliips to wliicli the present Coiiverition applies are ships
registered in coiintries the Govemments of which are Contracting
Goveriiments,and ships registered interritories to whiclithe present
Convention is extended under Article XII1 1.''
Similarly, Article II of the International Convention for the

Prevention of Pollution of the Sea by Oil, 1gj4 ,rovides that
"The preseiit Conventionshall apply to sen-goingshipsregistered
in any of the territories of a Contracting Government ..2''

Reference may also be made in this connection to the international
labour conventions which deal with maritime matters. The practice
of the International Labour Organisation is based in this matter
upon the proposais of a Co-ordination Committee which sat during
the Twenty-First Session of the International Labour Conference to
consider what formula might most appropriately be employed in

five important coiiventions adopted at that Conference: the Officers'
Competency Ccrtificates Convention; the Holidays nlth Pay (Sea)
Convention ; the Shipowners' Liability (Sick and Injured Seamen)
Convention; the Sickness lnsurance (Sea) Convention; and the
Hours of \frork and Manning (Sea) Convention.
The Co-ordination Committee examined nationality, the flag and

registration as possible criteria. Nationality was rejected on the
ground that, although ~iormally determinecl by registration, it
might be thoiight to refcr "to the ownership and control of the
vessel, and perhaps eveii to the nationality of the real as distinct
from the apparent ownership and control". The only available
account of the proceedings of the Committee continues in these

terms:
"It \vas pointed out to the Committee that iiationality, under-
stood in this scnse, is not the criterion wliiclideterinines the juris-
dictional rights of States over conditions ofemployment on board,
and that the criterion defining the obligations to be assumed by
States miist necessarily correspond witlithat whicli, under general
rules of international law, delimits the cxtcnt of their power and
control =."

United Kingdoni ï'uealySeries No.i(1953). Cmd. 8720.
? United Kingdom Trealy SerieNo. 56 (1958). Cinnd. 595.
Thepublishçd records of the International Labour 0rg;inisation do not contain
anyrecord ofthe deliberationofthe Co-ordination CommitteeHowever, an accouot
"Nationality. the Flag and Registration as CriteriforlDemarcating the Scopeed
of Maritime Conventions", inJournalof Comparative Law and Intcrnationnl Lcgir-
/~fio?, ol.>ilx (1937).p. 2.15.

550 \\'KITTEX STATEMEXT 01: THE GOVEKSAIEST OF LIBERIA

The flag was rejected as a criterion principally because of the
difficulties which might arise in connection with the application of
the Conventions to colonies. Finally, the Comrnittee proposed, and

the Conference accepted, a clause stating that thc Conventions
applied to "vessels registered in a territory for whicli this Convention
is in force" '.
Jfention may also be made of the Convention of June 23, 1926,
concerning the Kepatriation of Seamen 2,of which Articles I and 6

proviùe as follows:
"Article I. This Convention shall apply to oll sea-going vessels
registered in the Country of aiiy Member[ofthe 1.L.O.lratifying the
Convention,and to the owners,masters and seameiiof suclivessels...

Article6. The public authority of the country in which the vesse1
is registered shall be responsible for supervising the repatriation of
aiiy rnember of the crew iiicases where this Convention applies,
whatever inay be his nationality. and whcrc nccessary for giring
him his expenses in advance."

In addition, Article 274 of the Bustamente Code provides that
"the nationality of shipsis proved by the navigation license and the
certificate of registration and has the flag as an apparent distinctive

symbol" 3.
ii. Other?nultilateralconventions.Almost equally iniportant are those
miiltilateral conventions \\,hich use the expression "\~ssels belonging

to a State" or a variant thereof. The especial significance of this
mording lies in the fact that in at least four of the con\rentions in
\\,hich it appears, its direct connection with registration is made
quite apparent. In addition the Government of Liberia desires to
emphasize the fact that the two conventions which are rnost

explicit on the point deal in fact with aspects of maritime safety.
The provisions of both the Convention of Safety of Life at Sea,
1929 4,andthe Load Line Convention, 1930 are espressecl to apply
to ships "belonging to countries the Governments of which are
contracting Governments". Each Con\.entioii contains, moreover,

the following definition: "a ship is regarded as belonging to a
country if it is registered at a port of that country".
The Convention for the Unification of Certain Kules relating to
Naritirne Mortgages and Liens, 1926, also indicates that registration
is the corinecting factor between a vesse1and the State to which it

belongs. Article I provides as follows:

' Jenks , pcil.. p. 252.
a United Xations TrentySeries, Vol. 36, 315; Hudson, Inl~ntalional Legislaliorr.
Vol.<. o.r2si.
Leagueof Sations TreatySeries,Vol. 66 (1929). p. 246and p.326.
' Articlez (1).League of Sationç TrealySeries.Vol. 136, p. SI; Hudson. Inler-
nolional LegirlalionVol. IV,p. 2724. This Convention has now been replaced by
the Convention for the Safety of Life atSea. rgq8.See above p. qj.
Article? (1)League of Nations Trcaty SeriesVol.135. p. 301;Hudson, op. cil.,
Vol.v. p. 635. WRITTEN ST.4TEMENT OF THE GOVEHNMEXT OF LIBERIA 51

".\lortgages,hypothecations,andother similarchargesuponvessels,
duly effectedin accordance with the law of the contracting State to
which the vessel belongs, and registered in a public register either
at the port of the vcssel'sregistry or at a central office,shall,.be
regarded as valid and respected by al1other contracting parties. 1"

The same is true of the International Convention for a Uniform
System of Tonnage Measurement of Ships, of June 6, 1947 2.which
uses the expression "any ship which belongs to ...another party ..."
and does so in a context, namely, the use in the same article of the

concept of "transfer", which makes it clear that registration is the
criterion the use of which the article anticipates.
There remain four classes of multilateral convention which may
also be mentioned in this context.
In the first place, there is a group of conventions which employ

the simple genitive case to describe the connection between a State
and the vessels which are attributed toit. Thus, the Statute on the
International Regime of Maritime Ports, 1923, provides in Article 2
that "every Contracting State undertakes to grant the vessels of
every other Contracting State equality of treatrnent with its own

ve~sels"~. Conceivably, on their face, those words might be
construed as extcnding the benefits of the Convention to ships not
registered in the territory of a party, but nevertheless within the
national ownership of a party. There appears, however, to be no
evidence to support this construction.

However, the Statute may, in this respect, be compared with
the International Convention for the High Seas Fisheries of the
Xorth Pacific Ocean, 1952. By Article IX (2): "Each Contracting
Party agrees ... to enact and enforce necessary laws and regulations
with regard to its nationais and fishing vessels ..." In this case,

the simple genitive is coupled with an assertion of jurisdictional
competence which can only exist in the case of vessels, as is shown
above, when such vessels are registered in the territory of a State.
In short, in at least one case, the simple genitive has clearly
referred to the relationship of registration, nhile, in the other in-

stances, there is no evidence that it was intended to apply, or has
in practice been applied, on any other basis than registration.
Secondly, there are a numùer of conventions which employ the
expression "vessels flying the flag of the Statc" or a variant thereof
to describe the connecting factor between the vessel and the State.

One example is provided by the Barcelona Statute on the Regime
of Xavigable Waterways of International Concern, 1921.

League of Nations TreatySeries,Vol. 20,p. 189.
Britishand Foveign Sfate Papers,Vol. ijz,p. 345.
League of Nations Treaty Series, Vol.58,p. 286. See also theConventionfor
the Regulation of the AIeshes of FishingXets and tlieSize Limits of Fish,1946.
Article4 states that"..the provisionsof this Conventionshallapply to al1 vessels
ofany ContractingGovernment ...".
United States TrealySeries.Vol. 4,p.380. '52 \\'RITTEE; STATEMEPT 'OF THE G0VERXXEE;T OF I,IBERI:\

.4rticle 3. "... eacli of the Contracting States shall accord free
exercise of navigation to the vessels flying the Aag of any one of
the other Contracting States ...1"

In the third place, mention may be made of the Internatiotial
Convention for the Regulation of Whaling, 1946. This provides, in
Article 1 (z), that the Convention shall apply to "factory ships,
land stations and whale catchers under the jurisdiction of the

Contracting Governments.. .=".
It is clear, in each of these latter two instances, that the test of
registration must be employed for determining whether the vessel
in question is entitled to fly the flag, or is under the jurisdiction. of

the State which claims benefits on its behalf.
In the fourth place, considerable weight must be attached to
those multilateral conventions which employa possessive expression,
such as "each with" or "having" and, in practice, regard the

element of possession as satisfied by the connection of registration.
For example, Article XV (1) of the International Convention for
the Prevention of the Pollution of the Sea by Oil, of May 12, 1954,
provides that

"The present Convention shall come irito force twelvc months

after the date on whichnot lessthan ten Governmentshave become

' League of Nations Treatg Series,Vol. 7, p. 3j. The following are n number of
other examples:
Convention coiicerning the Simplification of the Inspection of Emigrants on
Shipboard, 1926:
"Arlicie 3. If an occial inspecter of emigrants is placed on board an emigrant
vessel he $hall be appointed as a general rule hy the Government of the country
whose flag the vesse1 flies..." (Hudson,op. cil.Vol. III. p. 18g8.j

Convention for the Regulation of Whaling, 1921:
"Article 8.No vessel of any of the High Contracting Parties shall engage in
taking ..whalee unlees a licence authoriring such vesse1 to engage therein shall
have been granted in respect of such vessel by the High Contracting Party wliose
flag she fli..." (Ibid.Vol. T',p. 1081.)
Treaty on International Penal Law, 1940:

"Article 8. Crimes committed on the high seas, whether on board airplanes, rnen
of war or merchant ships, must be tried and punished according to the law of the
State whose flag the vessel Ries." (Ibid..Vol. VIII, p. 483.)
International Convention relating to the Arrest of Sea-goiiig Ships, 1952:
"Article 8 (i).The provisions of this Convention shall apply to any vessel flying
the flag ofa Contracting State in the jurisdictionof any Contracting State."

International Convention for the Unification of certain Rules relating to Penal
Junsdiction in matten of Collision or other Incidents of Xavigation, 1952:
"Article 1. In the event of a collision or any other incident of navigation con-
cerning a sea-going ship and involving the penal or disciplinaryresponsibility of
the master or of anv other uerson in the service of the slii~. criminal or di.ci~li.arv
proceedings may héinstituied only before the judicial or administrativeauthorities
of the State of whicli the shiwas flying the flag at the time of the collisornother
incident of navigation."
United Kiiigdoin, Trealy Series No. 5 (1949).Cmd. 7604. \\'KITTEX S'TI\TE.\IICX OF THE GO\'EKS)IEST OF LIBEKI:\
j3
1)artiesto the Coiiveiitioii,inclnding five Goveriirneiitsof coiiiitries
each with iiotless thaii 5oo.000gross tons of tanker tonnage."

It is understood that registration was adopted as the test for
ascertaining the five Governments "eachwith" the required cluantity
of tonnage.
The same is true of the numerous conventions concluded under

the auspices of the International Labour Organisation, \\,hich are
expressed to come into force when a certain number of Members
who "have"not less than one million tons of shipping have deposited
their ratifications. For the purpose of determining whether a State
does "have" the requisite tonnage, it appears tliat reference is
made to the quantity of tonnage which appears upoii its national

register '.
b. 13ilateraltreaties.

Examinatioii of bilateral treaties also indicates that what is, in
effect, the test of registration is practically universally accepted as
the means of determining the State to which a vesse1 is attached.
This is the only practical interpretation which can be placed upon
the numerous clauses which identify vessels by reference to the

1a1t.sof their nationality or to the papers nrhich they carry. Identi-
fication of this kind excludes completely any investigation of the
O\\-nershipof the vessel.
The Government of Liberia has been unable to find a single
instance of a treaty made in the present century in which the
parties indicated any desire to go behind the test of registration

The general tendency in treaties of friendship, commerce and
navigation is to provide that vessels shall be considered as vessels
of a Contracting State if they are vessels under the flag of one
Contracting State which carry with them documents prescribed
under its municipal law or provide evidence of nationality.
The practice of States in the form of bilateral treaties lias been

closely analysecl by L'rofessorRienow in The Test of theNationality
of ri .Wercha+ztVesse1 3. After an examination of treaties to which
Great Britain, France, the Netherlands and the United States had
become parties with other States, in which he shows that the nation-
ality of a vessel is normally determined, for treaty purposes, by
reference to her registration, he concludes, in a passage which merits

quotation, as follows:
"Xo treaty of aiiy other State in whichownership \vas held to be
the test of nationality of a vesse1has corne to the attention of the

' For example, secAppendix 1, below. items16.17, 18,20 and zi.
cites two treaties1825Tand 1840between Great Britain and Colombia and Bolivia).
respectively in whichwar agreed that vessels to be "national"muet beof national
ownership. He comrnents on these two examples in the foliowing terrns: "The
numerical insigiiificance is, however. the strongest denial of the \varth of these two
treaties as any indicatioofinternational law.(Op. cil.p. 94.)
Xew York. 1937.54 WRITTES STATEXENT 01: THE GOVERXUEXT 01: LIBERIA

author. A careful study of the treaties of the maritime States duriiig
the twentieth century fails to reveal a single case in which national
owiicrship was mentioned in conjunction with nationality. \Yith the
exception of a few treaties employing the phrasenlogy introduced
by Great Britain in 18j0. al1 of them statc specifically by what
tokeii the nationality of a vesse1is to be made apparent ...

It may be said that the practice of Statesas cxcniplified hy their
trcaties offers but ne ligible evidence, in the forni of a single treaty
hetween the United L t,tes and the Congo, that a State in order to
siistaiii its claim to the rights of nationality over a vessel need aver
the natiorial ownership of the vessel. Thus, in the light of treaties to
which it is a party, no Statc caii deny that a vessel belongs to another
State I~ecausethe owncrship is not vested in the nationals of the
latter l."

3. Regislration and the practice O/ I.M.C.O.
III the third place. the Government of Liberia submits that
considerable neight should be attached tothe practice of I.M.C.0.

itself as demonstrating that "registration" is the test implicit in
the reference to "ship-onming nations".

a. Practice as an aid to interfiretation.
The propriety of recourse tothe practice of the parties to a treaty

as an aid to interpretation is now well established in the juris-
prudence of the Court
Thus, in the Advisory Opinion on the Cofnpete~tceof the Inter-
national Laboz~r Organisation with respect to rlgrict~ltrtral Laborrr.

the Permanent Court of International Justice observed that "if
there were any arnbiguity [iii Part XII1 of the Treaty of Versailles],

Rienow. op. cil, pp. 99-100. At pp. 18-21, the author givcs a list of bilateral
treaties coiicluded prior t1937 in wliich nationality is determined by the documents
borne by the vesse1 and not 1)s refïrencc to any such test as owncrship.
In Appendis 1, attached to this Statement, extracts are printed froin a number
of bilateral treaties connectedwith maritime matters which illustrate the use of
registration.either eo *ronzinc.or by reference to the pnpers oi the vessel, as the
appropriate factorfor connecting a vesse1 to a State.
' The same principle is, of course. tvell established in the municipal laws of
various States. Reference may bemade in this connection to the following statement
of the rationule of the rule by the Supreme Court of the United SIÿtes of America
in the case of Insura>rceCo. v.Bufcher:
"The practical interpretatioiiuf aiiagreement by a party to it is always a
consideration of great weiglit.'niecoristruïti<>n of a cantracisïs much a part of
it asaiiything elsï There iç no surer way to find out what parties meant than to
see what they have done. Self-interest stimulates the miiid to activity, and
sharpens its pcrspicacity. Parties in such cases often daim more, but rarely
Iess. than they are entitled to. The prohabilitieç are largely in the direction of
the former. In considering the question beioreus,it is difficult to resist the cogeney
of this uniforrn practiceduring the period mentioned, as a factor in the case."
(95 U.S. Reports 269.)
FQ~further authorities in relation to interpretationof treaties,see the Harvard
Law School. Research in International Law, Drufi Conue>rfiovo~nthe Law of Treofics.
Amarbuw Jour>ial ofInfernafiaal Law, Vol. 29 (1935). II-RITTES STATEZIEST OF THE GOVERSZIEST 01: LIBERI.1 55

the Court rnight, for the purpose of arriving at the true meaning,
consider the action which has been taken under the Treaty" l.
Again, the relevance of the practice of an organization as an aid
to interpretation is clearly demonstrated by a passage from the
Advisory Opinion of the Court on the Comfietence of the General
Assembly for the Admission of a State to the United Nations. The
Court, having decided, by reference to the text of Article 4, para-

graph z, of the Charter of the United Xations, that the General
Assembly could not admit a State to the United Nations in the
absence of a recornmendation to that effect from the Security
Council, followed that conclusion by a statement of the previous
practice of the General Assernbly ~vhich, in the circumstances,
indicates that the Court regarded reference to such practice as a
permissible aid to interpretation. The Court said:

"The organs to which Article 4 entrusts'the judgment of the
Organization inmatters of admission Iiave consistently interpreted
the text in thc scnsetliat the GeneralAssemblycan decide to admit
only on the basis of a recommendation of the Sccurity Council 2."

b. The relevant elements in the eractice of I.M.C.O.
There are four elements in the practice of I.M.C.O. to which the
Governrnent of Liberia would invite attention in this connection.

i. Article 60 and the entry into force of the Conuention.
Article 60 of the Convention provides that it "shall enter into
force on thedate when zr States of which 7 shall each have a total
tonnage of not less than ~,ooo,ooo gross tons of shipping, have
become parties...". There is no indication in the Article that

registration shall be the test of whether States "have" tonnage for
this purpose. It is, therefore, significant that when detennining
whether the terms of this Article were satisfied, the test employed
was in fact that of registration. 1\Ioreover,no question was then, or
has since been, raised as to the applicability of that test.
ii. Elcction to the Maritime Safety Commiltee.

It is also a fact of considerable irnportaiice that the bais of the
very election, the validity of which is now in dispute, \vas a list of
registered tonnages drawn by the Secretariat frorn Lloyd's Registcr
of Shipfiing. The Governrnent of Liberia belicves that the use of
such a list \vas necessary and unavoidable and that it contained the
proper criterion for adoption by the Secretariat of I.fiI.C.0. and

the general body of Mernbers for the determination of the respective
size of ship-owning nations. It is, in the view of the Governrnent of
Liberia, significant that tbis test was actually followed for the
purposes of the election to the Maritime Safety Committee, with
the sole exception of the unu~arranted discrimination against

' P.C.1.j.. Serr8, 30.2.al p.qo.
I.C.j. Heporfs 1930.S4. ûtp.g.Liberia and Panama in refusing to follow the dictates of the list in

relation to them. Apart from this exception, this conduct of the
Assembly constituted forceful acknowledgment that registered
tonnage is the criterion which the parties intended to be reflected
by the words "the largest ship-owning nations".

iii. Afifiortionment of contribt~tionsto the budget.
The third element in the practice of I.hf.C.0. which shows both
the convenience of the use of the list of registered tonnages and the
general willingness of the Assembly to use it, even in situations
involving Liberia, is that of the distribution of the burden of finan-
cial contribution.
Itis convenient, in demonstrating this point, first to mention the
terms of the Resolution adopted by the Assembly on January 19,
1959' .n the Apportionment of Expenses among Member States,
which ivas recomrnended by the Adrninistrativ~: and Financial
Committee 2; and then to review the discussions tvhich preceded

the adoption of the Resolution.
The significaiit feature of the Resolution is the extensive reliance
which it places upon the concept of gross registered tonnage. Each
Member is required to contribute "a basic assessment" determined
by the percentage of its contribution to the budget of the United
Nations. There is also a further obligation on each Member to
contribute "an additional assessment determined by its gross
registered tonnage as shown in the latest edition of Lloyd's Register
of Shififiing, on the basis of one share for each 1,000 tons".
On this basis, which the Government of Liberia was perfectly
content to accept as reflecting its status as an important ship-
owning nation, the contribution of Liberia to the budget assessment
of I.M.C.O. is $16,27 per annum, consisting of a basic assessment
of $2,000 and an additional assessment, based on the possession of
over ro million tons of registered shipping, of $14,278. Liberia is
thus called upon to bear 6.87% of the budget assessment of the

Organization. In addition, Liberia's cnntribntion to the l.?vî.C.O.
Working Capital Fund (calculated solely on the same percentage)
is $3,435. Thus, Liberia's total contribution for the first working
year is $19,713 This may be compared with the folloiving figures
which indicate the percentage of the budget borne by Liberia in
other international organizations: the United Nations, the Food
and Agriculture Organization, the United Nations Educational,
Scientific and Cultural Organization and the World Health Organi-
zation, o.04% ;theInternational CivilAviationOrganization, 0.13% ;
and the International Labour Organisation, 0.12%. In other words,
the Liberian contribution to I.M.C.O. is about fifty times greater
than its largest contribution to any other international organization.

l>ICO~A.r/\Vorking Pape16. IVRITTEN STATEJIEXT OF THE GOVERSJIEST OF I.IBERIA
j7
Throughout the discussion relating to the apportionment of

finance, the criterion of gross registered tonnage played a central
part. The terms in which this debate took place are set ont in the
accompanying footnote'.
The Governmcnt of Liberia is anxious to emphasize not only that

the Administrative and I'inancial Committee relied upon the
criterion of gross registered tonnage but also that it did so in terms
which made it plain that Liberia was regarded as heing one of the

largest Members by reference to this criterion. It was not, for
example, suggested by any Member that an attempt should be made
to go behind the figures of Liberia's gross registered tonnage, despite
the fact-as may be seen from the statements cited in the footnote

that a number of Members regarded tonnage as indicative of the
estent of the interest which a Blernber hxd in the Organization.
Even when the dclegate of Liberia enquired whether, in the view of
Liberia's inadequatc representation in the differcnt organs of the

Organization (the elcction of the Maritime Safety Cornmittee having
taken place two days previously), it was really fair that his country
should coiitributc 7% or 8% af the Organizatioii's budget %, the
only reaction came from the delegate of Norway who suggested

that Liberia and Panama should be exempt from the supplemeiitary
percentage based on tonnage 3.However, no 3fember showed any
disposition to pursue this suggestion and the solution ultimately

' Although a nirmber uf schemes of apportionment werï discussed. the factor of
gross registered tonnagc was present in each of them.
Thus it appeared in a "l'ossible Scale of Assessments" prepared by the Secre-
tariat (IhICO/A.i/AF Working Paper 3).

It appeared again in a ]>ropasal made by the Uiiited States ivhich mas based on
a flat coiitributioof $3,000and additional shares calçulated acïording to tonnage
ownership (IMCO/A.r/AIilSll.q, p. 3).
The delegate of the Setherlaiidsemployed it wlieii advucatiiiga difierent system
based on the capacity ofalembers ta pay, as applied by niost ol the other speciaiizcd
agencies. His words in this connection are ofspecinl relevnnee:
"For instance. ,5% of 1CAO's budget was apportioned on that Liasis. and
25% according to Ihc inlercrl of i>Iember SIaler in Ihaims of Ihe organirotion. In
the case ofIiMCO. lhal25%. could bcassessed inacrordancc luiil#ioiznaea ownershi+.''
(Ibid., pq (italicç çupplied).)
The delegate of the Soviet Union placed exclusive reliancr upun it. He "maiii-
tai~ed that apportionment of expenses among Member States should be founded
upon tonnage owricrship, sirtce SfaLes wifh the larges1 Io,rringcs would receiuc Ihe
grentert bcnefi/rom the Organirafion".(Ibid.. p. 5 (italics supplied).)
Even the delegateof the United Kingdomsaid that assessmrnt "based oiicapacity
to pay. did not seem suitable fora technical agencyconcçrned solely with shipping;
some açcount must be taken of tonnage". (Ibid., p. 6.)

Sirnilar views were repeÿtedly expressed by thc delegate of Canada. who said:
"The amount required to make uy the total budget would be obtained by
assessrnent on the bvsis oftonnage. Such a iiiethod would givc soirierecognitiori
to capacity to pay as well as to the interests and benefitç drrived." (Ibid., pPi.
See also, Ibid., pp. and l%lCO/:\I/AFISR.5. p. 2.)
1MCO/Ai~/.4F/SH.6, pp. 3-4.
Ibid.. p.4.58 WRITTES ST.4TEXIEST OF THE GOVERSBIEST OP I.IBERI:\

adopted by the Assembly ' \\-abased on the assumption that Liberia
was obliged to contribute by reference ta her actual gross registered
tonnage.
Unless the practice of the Organization is to be regarded as
imposing on certain Members second class rights coupled with first
class obligations-which is an inherently improbable conclusion
trespassing on the concept of equality of States in international
law-there is compelling force in the contention that if registered
tonnage cûn be used as the criterion for establishing pro rata
contributions it \\.as also iritended to be used as the criterion for

determining size as a "ship-owning nation".
iv. Elections to the Coz~ncil.

Despite the fact that less specific standardsare laid down for the
establishment of the Maritime Safety Committee under Article 2s
(a) than are laid down for the composition of the Council under
Article 17 (c),it is still pertinent to refer to the manner in which
reliance was placed in the I.hl.C.0. Assembly upon the function
of registered tonnage in determining the composition of the latter.
Article 17 (c)provides that two members of the Council "shall be
elected by the Assembly from among the governments of nations
having a substantial interest in providing international shipping
services". Appendix 1 to the I.M.C.O. Convention further provides

that, for the first Council, the two Members to be elected by the
Assembly under Article 17 (c) shall be elected "from a panel
nominated by the six members named in paragraph (a) of this
Appendix". Those six States are Greece, the Netherlands, Nor\vay,
Sweden, the United Kingdorn and the United States.
The follo\\~ingis the relevant part of the Summary Record of
the speech made by the representative of the United Kingdom
(Sir Gilmour Jenkiiis) in transmitting to the Assembly the recom-
mendations of the six Members:

"The represeiitatives of ...[the six Xembers] had therefore
examined the claims of countries having a substantial interest iii
providingiiiternatioiialshippingservices.Theydid not fcelthat they
should propose to the Assemblya long list of candidatnres, as tivo
countries clearly siirpassed the others in the size of their tonnage;
j,soo,ooo tons) aiid of Italy (with a tonnage of ncarly 5,000,ooo*"

The Summary Record continues with the follo\ving passage:

"In reply to Mr.If'eeks(Liberia),Sir GilmourJeiikins statcd that
it had not beenpossibletoconsiderthecase ofLiberiaas that country
\vasnot a meniher at the time of the meeting. 8"

'IhlCO/A.i/Al~/SR. G.5.
' I.ivI.C.Assenibly,First Session, Sumrnary Record of the Third Xleeting,
lanuary7, 1959.I.\ICOIA.ilSR.3p,p2-3.
a Ibid., p. 3. WRITTEN STATEhIENT OF THE GOVERNMENT OF LIBERIA
59
The significance of these observations is twofold: in the first
place, they show that even for the purpose of determining whether

a State has a substantial interest in the provision of international
shipping services, the test of registration was adopted as the ap-
propriate criterion. For it may be noted, if reference is made to the
Secretary-General's List of Tonnages, Japan and Italy can be

seen to be the largest States in terms of tonnage not already to
have been nominated to the Council. Secondly, the sole reason
adduced by the United Kingdom representative for the non-
consideration of Liberia was the fact that at the time of the meeting

of the six named States, Liberia had not joined I.M.C.O. No
suggestion \vas made that the tonnage under her flag (which was
accepted as the relevant criterion for Japan and Italy) was for any
reason not entitled to recognition.

On this basis Japan and Italy arere unanimously elected members
of the Council l.
4. Registration and the shipping situation in 1946.

Some consideration should also be given to the position prevailing
at the time when the I.M.C.O. Convention was drafted.
The terms of an international convention should be construed in

the light of the situation of law and fact prevailing at the time when
it was drawn up. For this proposition-which has been termed as
"the principle of contemporaneityu-there is clear authority in the
jurisprudence of the Court. Thus, in the Judgment in the Case

concerning Rights of Nationals of the United States of America in
Morocco 2,the Court, when construing the word "dispute", said: cc...
it is necessary totake into account the meaning of the word 'dispute'
at the times when the two treaties were concluded" 3.

Although the I.M.C.O. Convention was not formally adopted
until1g48, it appears from the records of the Transport and Com-
munications Commission of the Economic and Social Council of the
United Nations that the Convention first took its present shape in

1946. Certainly the expression "the largest ship-owning nations"
appears in Article VI1 (1) of the draft Convention prepared by the
United Maritime Consultative Council prior to its dissolution in
October 1946

' I..lI.C.O.Assembly, First Session, Suinmary Record of the Shird hiieting,
January 7, 1959, IhlCO/A.i/SK.3, p. 3.
7.C.J. Reporl~1952, p. 176.
Ibid.. p.189.The principle is exarnined by Sir Gerald Fitzmaurice in "ThLaw
and Procedure of the International Court of Tuçtice. I,"I-IQS~''. BritisliYear
Book of Intevnafional Lam, 33 (1g57).at pp. 225.227. In his own comment Sir
Gerald States: "Not to takeaccount of contemporary practice and circumstances.
and to interpret such treaties accarding to modern concepts.would aften amount
to importing into them provisions they never really contained, and imposing on
the parties obliptioos they never actually zssumed."
See Economic and Social Council, Olfcial Records, SeconYeau: Fourlh Sessiorr.
Supplemetst No. 8,p. 8.
Ibid.. p.44.Article VI1 (1)of the draft providedas follows:
"The Maritime Safety Committee shall corisisoffourteen Member tiovern-
ments selected by the Assembly from the Governments of those nations having60 IVHITTES STATE~IEST OF THE GO\~ERS>IEST OF I.IHEKIA
The importance of thedate at which the Con\,eiitioii was drafted

lies in this fact: in1946 the situation which has sirice occasioned the
attack in I.M.C.O. ypon the Governments of Liberia and Panama
had not developed in any significant respect. ln these circumstances,
it seems highly improbable that the draftsmen of the Convention
would have attempted to grapple with a question which, in relation
to shipping, was then really non-existent. It seems equally improb-
:~ble,if they had intended to abandon the use of registration asthe

connecting factor between a vesse1 and a State, that they would
have failed to use the clcarest and most explicit language or that
they would have continued to einploy language so similar to that
previously employed for invoking the ver- relatioiiship which they
\\.onld have been secking to abandon.
It need hardly be addecl that if the Court accepts the view that
zitthe time the 1.31.C.O.Convention was drafted the intention of

the parties was to invoke the concept of registration, then, asthe
Court has itself stated in the past, it may not iiow revise the
Convention in a maiiner uzhich, if the voting oii the election of
Liberia to the Maritime Safety Committee is any guide1, would
not satisfy more than hdf the parties to the Conveiition. Indeed, in
its Advisory Opinion on the I?tterpretation of the Peace Treaties

with Bi~lgaria, Hlrngary and Ko~nntiia(Second Phase), the Court
said: "It is the duty of the Court to interpret the treaties, not to
revise them 2."

5. Thesolz~tiui t/analogo~ts prublemsbyexpresslangz~uge :.C.A.O.
111the fifth place, it is pertinent that the draftsmeii failed to use
some expression other th:iri "ship-owning nation" if the criterion of

con~iection which they hatl in mind was something other than
registration. As the Government of Liberia understands the
position, there would have been only one reason for abandoning
the test of registration, nriniely, that the draftsmen wished to
ensure that in every case the size of the ship-owning nation should
be determined not by a formal requirement but by the quantity of
tonnage beneficially owned by the nationals either directly or as

beneficial shareholders in corporations. In these circumstances, the
object of the draftsmen would not have been secured if their
language were construed merely as requiring that the vessels
shonld be owned by nationals of each State. That would have left
open two possibilities: either that the vessels might be owned by
companies incorporated in the territory of a member, despite the

fact that the shares in and effective control of the Company might

an important interest in maritime safety, which iiotless than eight $hall be
iiisure adequatereprerentationofaother nationsewithaimportantecinterestsino
maritime safety and of major geographical are.."

2 I.C.J. Reports zgp,p.221,at p. mg. \YRIlTEi\. STATEMENT OF THE GOVERNhI1:XT OF LIBERIA 61

rest in non-nationals of that State l; or that the vessels might be

mortgaged or under bareboat charter on a long-term basis to a non-
national interest
Consequently, it would have been reasonable for the draftsmen
if they had wished to avoid the risk of the use of such a criterion as

registration to employ express urords to achieve that end, rather
than use so general a provision as "ship-owning nations".
The force of these observations is strengthened when it is appreci-
ated that this very problem had already arisen and been dealt with

in the field of air transport in the form of what is known as "the
substantial ownership and effective control" clause. The first use
of this clause in a multilateral instrument is in Article 1 (j) of
the International Air Services Transit Agreement concluded at

Chicago in 1944. This providcs as follows:
"Eacli contractiiig State reserves the right to witlihold or revoke
a certificate or permit to an air transport enterprise of aiiother
State iiian). case whereit is iiot satisfied that siihstantial ownership

and effectivecontrol are vested iiiiiationalsofa contracting State ..."
A similar provision appears in Article 1 (6) of the International
Air Transport Agreement of the same date. In addition, since that

tiine,,the insertion of a similar clause has been a persistent feature
of the numerous bilateral air service agreements which have been
concluded hetween States on a basis of reciprocity.
The origin of these clauses has been traced by a leading aiithority

on the law of tlie air to the Pan-Americaii Confcrence at Lima in
1940 3.At that tiine, the purpose of inserting the clause in air transit
agreements was to prevent companics ownecl aiid controlled by
German natioiials, but registered in South i1nicric:in States, from

operating in the Panama Canal Zone. It was a deliberate modifi-
cation of the normal rule, relating tothe recognition of registration,
which was deemed to be justified by the special requirements of
international air transit 4.

The relevance to the present situation of the specific treatment of
the problein of substantial ownership and effective control in the
field of civil aviation may be stated in the following terms:

'See. iar exarnple, the staternent made by Professor H. ri.Smith on the etiect
of the United Kingdoin law relating toregistration:
"English law rrquires the complete legal ownersliip to be vested iiitjritish
subjects. but this requiremrnt is of less value than might alipear. since itdoes
not exclude ownership by a Company inwhich the wntrolling interest isheld by
fareigners."(Law and Cttrfo>riof(BeSca (2nd ed.,1950). p. 49,)
As is well known. a coiispicuou eature of çhipping practicc for many years
hirr beenand still remains thatof financingthe construction of vesselçby meanç of
loans secured by mortgages and charges bot11 on the vïsçcls arid tlieirearnings.
These rarnings are in large part ensured by means of tlic cunçlusioiof long-term
cliz~rtersI.necd hardly be added that the financing ofthe vessels,as well as tlieir
charteriiig,frequently involves corporations of diverse nationalities.
See Goïdhuis, "Questions of i'ut~liInternational Air Law", Hague Ilecr<eil.
Vol. Mr (rg52-II),at p. Zr).
Goedhuis. op. cil... 215.62 \VHITTES STATEMEST OF THE GO\'ERN\lEST 01: LIBERIA

i. In the first place, with the 1.C ..O. precedent so recently
before them, it seems improbable, if the draftsnien of the I.M.C.O.
Convention had intended to achieve the same end, that they would
have used such vague terminology.
ii. A second consideration is that, in contrast with the situation

prevailing in relation to the constitution of the Maritime Safety
Committcc, the primary reason for inserting the "substantial
ownership and effective control" clause into the Air Transit
Agreement \vas in order to preserve the balance of contractual
concessions involved in the reciprocal grant of air transit rights. In
the absence of such motivation, it is more readily understandable
\vhy the draftsmen of the I.M.C.O. Convention did not seek to
insert provisions of the same degree ofparticularity in the instrument
\\rith \\.hich they were concerned.

6. Consideratio~csof convenienceand llceabsence O/ ~izachineryof
i~cvestigalion.
A further consideration which may be adduced in favour of
registration as being the appropriate connecting factor between a

State and a vesse1 is that of convenience. Registration is explicit
and it is easily veritied. The convenience of employing it as the
connecting factor when determiniiig the comparative size of States
is demonstrated by the reliance placed upon it in shipping statistical
tables (such as those published in connection with the Suez and
Panama Canals), registers of shipping and comparisons in shipping
publications, etc. As a criterion it is clearly a great deal more
convenient than ownership, especially if attempts are made to deal
\\rith questions of corporate ownership, or to takc iiito consideration
the position of mortgagees or of long-term bareboat charterers. In
the absence, tlierefore, of clear words, there is no reason to assume

that the draftsmen intended to abandon a test which has come to
form so frequeiit a feature of international practice in this sphere.
There is another point of some importance which should be niade
in this connection. The reference in Article 28 (a) to the eight
"largest ship-owning nations" may be conipared witli the use of
quantitative criteria in other contests, such as Article 17 of the
I.XI.C.0. Convention and Article 7 (2) of the Constitution of the
International Labour Organisation.
There can. of course, be no real doubt that when quantitative
criteria areset out in an instrument it is the intention of the drafts-
men that the discretion of States should proportionately be limited.
Holire\,er, practice has shown that where such criteria are necessarily

imprecise, they cannot satisfactorily be applied without the inter-
position of sorne fact-finding machinery. Thus, Article 17 of the
I.M.C.O. Convention rcquires that n certain nuniber of members
of the Council shall be "governments of the nations with the
largest interest in providing international shipping services" and
that some also shall be the governments of nations with "the WRITTEX STATEXIENT OF THE GOVERNXEXT OF LIBERIA 63

largest interest in international sea-borne trade". The determina-
tion of those Members who satisfy these criteria is, by Article 18,
expressly vested in the Council-a provision which strongly sug-
gests that those matters were felt to be too complcx to be dealt
with satisfactorilv bv the fact-findin~-DLocesses of each Member
acting individualiy.
The same is also true of Article 7 (2)of the Constitution of the
International Labour Oreanisation. This states that "Of the sixteen
persons representing ~overnments [in the Governing Body], eight
shall be appointed by the hfembers ofchief industrial iinportance...".

The iiext paragraph provides as follows:
"3. The Governing Body sliall as occasion requires determine
which are the hfcmbers of the Organisation of chief industrial im-
portancc and shall make rules to cnsure that al1qncstions relating
to the selcction of the Membersof chicf industrial importance are
considered by an impartial Committee before beingdecided by the
Governing Body."
By contrast, no fact-finding organ is employed in relation to
the determination of "the largest ship-owning nations" in Article

28 (a) for the purposes of the composition of the Naritirne Safety
Coinmittee. This is not because it was intended to grant Members
an absolute discretion (for that \vould make nonsense of theenumer-
ation of conditions), but rather, it inust be assumed, because the
criterion mentioned in Article 28 was regarded by the draftsmen as
one which mas so readily ascertainable that no need for the use of
an investigating organ would arise. If, as is submitted, this inter-
pretation of the position is correct, then it is clear that the only
objective test which could thus beapplied would be either registra-
tion or nominal ownership.

7. Travaux préparatoires as an aid to inter$retation.

Finally, the Government of Liberia believes that it may be
helpful to refer briefly to the trauazix $ré$aratozresleading to the
conclusion of the I.11.C.O. Convention. In so doing, it is, never-
theless, conscious of the observations which the Court has made in
the past about the permissibility of recourse to preparatory work.
On the whole, the written records of the conferences leading up
to the adoption of the I.M.C.O. Convention are, with one exception,
of little assistance.
The respect in which the travaz~x$ré$aratoiresare of some help
is the following: from the outset, it was apparent that the inclusion

in the Maritime Safety Committee of the largest ship-owning
nations was deemed to be a question of very great importance. In
an English text prepared in September, 1946,by the Committee on
the possible Constitution for the intergovernmental maritime
organization, Article VII, Section 2 (the equivalent of present
Article 28 (a)) was worded so as to read: "The Maritime Safety64 \\'RITTES STATI3IEKT UF THE GOVERXAIKKT 01' LIBERIA

Committee shall consist of 12 Member Governments selected by the
Assembly from the Governments of those nations having an iinpor-
tant interest in maritime safety and owning substantial amounts of
merchant shipping, of which no less than nine shall be the largest

ship-owning nations ... 1"
The Committee report contained the followvingcomments: "The
Maritime Safety Comrnittee, as proposed, will include the largest
ship-owning nations. This is of great importance to its successful
operation. P" The minutes of the sixtli meeting of the Council(rg46)

show that the United States proposal under which "not less than
nine shall be the largest ship-owning nations" was the subject of
discussion as to the minimum number of representatives from the
"largest ship-owning nations" but not as to the importance of
using that standard.
The whole proposa1 was fully discussed at a meeting of the

United Nations Maritime Conference held at Geneva, February 19-
Mach 6, 1948. There the delegation of the United Kingdom made
clear its position in saying that: "What was essential was that
the Organization's recommendation should have the support of the
countries which were called upon to iniplement them, otherwise

they would be valueless 3."
Apart from the above-inentioned exception, the general mode in
which the Article achieved its present shape, when considered in
conjunction with the whole tenor of the debates4 on the Article,
suggests that the conclusion to be drawn from the travaux prépa-
ratoires in the preseiit instance is the same as that reached by the

Permanent Court of International Justice in the Advisory Opinion
on the Cornpetenceof the International Labozlr Organisation with
respect to Agricz~lturalLabour. In that case, the Court fouud, upon
an examination of the records of the development of Part XII1 of
the Treaty of Versailles, that "there is certainly nothing in the
travaux préparatoiresto disturb the conclusion" of the Court '.

At the time same, the absence of any specific contribution by the
Lravazlx $réparatoires to the interpretation of "the largest ship-
owning nations" may itself be a factor of some significance. It
suggests that the phrase was not merely regarded by its draftsmen
as being clear and non-controversial, but was also accepted in the

two preparatory conferences. In view of the cogent considerations
set out earlier in this Statement in favour of the view that registration
would have been the normal and obvious test to employ for deter-
rnining what a "ship-owning nation" is, it is permissible to infer

1United Maritime Cornrnittec Council, \\"ashington, D.C. URziz,October 14,
1946.P. 6.
Ibid..p. rr.
United Natioiis document EiCONIi. qiS11. Reuised, p27.
presentforniareoset out in AppendixfIIrtothe present Stat.ement.t draft to its
6P.C.I.J., Series BXos. 2and 3, p. 41. \VRITTEX STATEZIEST OF THE GOVERSZIEST OF I.IBEHI.4 65
from the silence of the parties on the question that they did not
intend to depart from an interpretation which was plain as \\,el1
as convenient.

C. The question of alternative criteria

References in speeches of Members to other criteria for the
determination of the size of a ship-owning nation were so lacking
either in clarity, consistency or detail asnot to cal1for or even permit
reply. It is the position of the Government of Liberia that the
application of the criterion of registration is so clearly and un-
mistakably called for that other criteria are necessarily excluded.
iYevertheless, should this question be considered further by other
Members in the course of their Statements, the Government of
Liberia mould wish to be allo\ved to submit its o\vn comments
upon them. At the same time, the Government of Liberia should
not be regarded as admitting that Members who gave reasons
during the debates in the Assembly for their line of conduct are
free to invoke in the present proceedings arguments which they
did not advance or may not have contemplated during the relevant
debates of the Assembly.

III. "Au Imfiorlant lnterest in Maritime Sa/e&"-
Its Linzited Relevaizce

The Government of Liberia has so far been discussing the
meaning of the mords "the largest ship-obvning nations". It is now
necessary to turn to some consideration of the phrase "an important
interest in maritime safety" which also appears in the first part of
Article 28(a) as a consideration bearing on the election of Members
to the Rlaritime Safety Committee.
The postponement of the examination of this phrase until after

the discussion of the expression "the largest ship-owning nations"
is deliberate. It reflects the opinion of the Government of Liberia
that, as used in relation to the election of the eight"largcst ship-
owning nations", the reference to an important interest in maritime
safety of these States plays a distinctly limited role.
The expression "an important interest in maritime safety" is,
manifestly, a vague one. It is, for example, much broader than
comparable descriptions which appear in the Constitution of the
International Labour Organisation, such as "the States of chief
industrial importance" for the purpose of defining those States
which are accorded a special place in the Governing Body, or "the
most representative" bodies of employers and workers which
Statesare obl-aed to consult in nominatin- their non-eovernmental
dclegates.
Accordingly, in view of the difficulty of endowing the expression
"an important intcrest in niaritime safety" with some absolute
definable content, the Goverinnent of Liberia believes that an
6 WRITTEN ST.4TEMENT OF THE GOVERXMENT OF LIBERIA 67

B. The largestship-mning nations, as a matterof construction.

havean importantinterestin maritime safety
Secondly, once it is established as a matter of fact that a State is

one of the eight largest ship-owning nations, it is difficult to see
how in law it can be said that it does not have an important interest
in maritime safety.
One factor of relevance in this connection is that the "interest"
referred to is clearly an interest at a national level rather than at a

riva te one. It refers to the interest of the State as such and not to
the interest which particular individuals may have. This, it is
believed, clearly follows from the indication given in relation to
the "six", that a nation has an important interest in maritime safety

if it is "interested in the supply of large numbers of crews or in the
carriage of large numbers of berthed and unberthed passengers" '.
Clearly, then, a State which is included aniong the eight largest
ship-owning nations by reference to registry and which by reason

of such registration is internationally responsible for one of the
eight largest national fleets must, in all reason, be regarded as
having an important interest in maritime safety 2.
Indeed, anyState with vessels registered within its territory must

have some interest in maritime safety merely because it is obliged
to make and enforce regulations on board such vessels. An example
of this may he seen in the practice of Liberia itself. Liberia has, for
instance, an elaborate system of rules and regulations connected

with maritime safety.
The Liberian Government enforces strict compliance with the
detailed requirements of international conventions on maritime
safety to which Liberia is a party. To insure proper maintenance of
Liberian vessels, periodic inspections hy competent qualified

inspectors are required.

As an example of the meaning attributed to the concept af "an important
interest in maritime safety" by at leastone delegation, reference may be made to
the observation of hlr.Weston (the delegate of the United Kingdom) made at the
United Xations Maritime Conference in ,948 in connection witha proposal by the
Pakistan and Indian delegates for the addition to Section r of Article28 (then
numbered VII) of the words "and of nations with the important interests in the
supply of crews and in the trtrnsport of berthed and unberthed passengers" after
the words "soas to ensure adequate representationof other nations with important
interests inmaritime safety and of major geographical needs". The United King-
dom delegate said "that the words 'other nations withimportant interests in mari-
time safety' had beenincluded in the U.M.C.C. draft precisely inorder to provide
for the representation of the nations interestedin providing crews. and the view
had been accepted by the Warking I'arty". (E/CONF.4/SR. Revised, p. 77.)
The above remarks may be contrasted with thaçe made by the linited Kingdom
delegate, Mr. Faulkner, at the eighth meeting of the First Assembly of I.M.C.O.
on January 15, 1959.when he refened to the lack. on the part of theGovernrnent
of Liberia, of expert knowledge and experience in maritime safety matters. (IXCO/
Ai/SR.8, p. 3.)
a Needless to say. without the inclusion of the largest ship-owning nations.it
would be unrealiçtic to expect that the important objectives of the Maritime
Safety Cornmittee could he accomplished.68 \VRIl"I'ES STATE.\lEST OF THE GOI'EI<S.1IEST OF LIBERIA
Section 30 of tlie Liberian filaritirne La\vadopts the non-statutory
maritime law of the Uiiited States of America in so far asit does tiot

,'nflict with the specific provisions of such law. This provides a
common law" background which would not otberwise have been
available because of the more recent appearance of Liberia as a
maritime power.
Liberia has a growing body of statutory law governing seaworthi-
ness, inanning and social matters. The Liberian rnerchant fleet,
generally conceded to be amongst the world's finest. is largely made
up of vessels built since the war in the best shipyards and according
to the latest design embodying the most carefully considered safety
requirements. These \,essels are manned by fully qualified seamen
and officerschosen principally froiii the older maritime nations, but
subject always to strict Liberian licensirig requiremerits.
Al1these mattcrs are more fully described under the heading of
"The Liberian Maritime Programme" which appears as Appendix
III to this Statcment.
As a matter of simple logic, the more ships which a Member
regulates in this way, thc inore important is its iriterest in maritime
safety. In short, therc is a clear and compelling connection between

status as one of the eiglit largest ship-owning nations and tlie
possession of an important interest in maritinic safety. As a matter
of law, the latter is deemeclto follow upon the former.
This close connection between status as one of the eight largest
ship-owning nations and the possession of an important interest in
maritime safety is not inercly obvious; it is one the validity of
urhich was quite clearly recognized by a nuniber of members of
1.hl.C.O. in a different, but directly related, context. During the
debates in tlie Administrative ancl Financial Committee on the
apportionment of the Budget several Jlembers expressly related
the interest of a Member in the objects of tlie Organization to the
size of the Xlember's figures of registered tonnage.bus, the Nether-
lands delegate, having referred to the practicc of I.C.A.O. and
stated that zj% of the budget was apportioned according to the
interest of Meniber States in the aims of the Organization, said:
"In the case of I1\1CO,that 25% could be assessed in accordance
\\<th the tonnage ownership. "' The delegate of the Soviet Union
also observed that "States with the largest tonnages would receive
the greatest benefits from the Organization. *" The delegate of

Canada in explaining his proposal that contributions should be
assessed by reference both to the scale of contributions to the
United Nations and to tonnage figures, said:
"Recognition lias tieerigiven to tlie priiicipleof capacity to pay
[in tlie form ofhe rcfereiice to tlic United Nations coiitrihutions scale],aiid at the same time to the interest and tienefitsof inembers
[as reflected, no douht, in their tonnage figures] 1."

There is no reason why the general interest in the objects of
1.3I.C.O. thus acknowledged to be reflected in the tonnage figures
should not, in relation to a particular aspect of the work of the
Organization, also constitute an interest in that particular matter.
Consequently, if a State's interest in the objects of 1.hf.C.O. is
proportionate to its tonnage, it follows that the State with the
third largest tonnage must have the third largest interest in maritime

safety. If that is not an "important" interest, it is difficult to give
the word "important" any objective meaning whatsoever.

IV. Efects of the CorrectInterpretatio~zof Article 28 (a)

Once it is estabIished that the size of a ship-owning nation is
determined by the quantity of registered tonnage, then Liberia, as
one of the eight largest ship-owning nations, was entitled to
election. The failure of the Assembly to elect Liberia means that

the Maritime Safety Committee is not validly constituted.
The Governmcnt of Liberia considers that the enumeration in
Article z8 (a) of the conditions relative to election to the Maritime
Safety Committee is exhaustive. No valid distinction in this respect
can be drawn between Article 28 (a) of the I.JI.C.0. Convention
and Article 4 (1)of the Charter of the United Nations. And just as
the Court held in the Advisory Opinion on Admission of a State to
the United Nations that the conditions listed in the latter article

wcre exhaustive, so the Govcrnment of Liberia considers that the
same conclusion must be reached in respect of the former. Certain
observationsmade by the Court in its Opinion are equally applicable
in the present instance:
"The provision would loseits signiticance and weiglit, if other
conditions, unconnected with those laid down, could be demanded.
The conditions stated in paragraph Iof Article 4 must therefore be
regarded not merely as the necessary conditions, but also as the
conditions which suffice=."

It follows from the exhaustive character of any enumeration of
conditions that further requirernents cannot validly be added to
them. This point also nas the subject of specific consideration by
the Court, in the Advisory Opinion referred to above, in words

which cal1 for cxtended quotation:
"Nor can it be argued that the conditions enumerated represent
only an indispensable minimum, in the sense that political consider-
ations could be superimposed uponthem, and prevent the admission
of an applicant which fulfilsthem. Such an interpretation woiildbe

It'ordin parentheses added.
Vbbid.. p62.ls 1948,p. 57, ap. 62.70 ~VRITTEK STATEIIEST OF THE GOVERNMENT OF LIBERI.~

inconsistent with the terms of pavgraph z of Article 4, which pro-
vides for the admission of "tout Etat remplissant cesconditions"-
"any such State". It would lead to conferring upon Members ail
indefinite and practically unlimited power of discretion in the
imposition of new conditions. Suc11a power would be inconsistent
mith the very character of paragraph I of Article 4 which, by reason
and the observance of the principles and obligations of the Charter,
clearly constitutes a legal regulation of the question of the admission
of new States. To warrant an interpretatioii other than that whicli
ensues from the oatural meaoing of the words, a decisive reason
ivould lx rcquired ivhich has not been established.
Moreover,the spirit as wellasthe terms of the paragraph prcclode
the idea that considerations extraneous to those principles and
obligations can prevent the admission of a State which complies
with them. If the authors of the Charter had meant to leave Members
free to import into the application of this provision consideratioiis
extraneous to the conditions laid down therein, they would undoubt-
edly have adopted a different wording '."

These views of the Court in the Admission's case are equally
applicable in the present situation; andit follows that Members of
I.M.C.O., when electing States to the Maritime Safety Committee,
are not entitled to add to or Vary the conditions set out in Arti-
cle 28 (a).
At this point, however, the resemblance between the Admission's
case and the present situation terminates. In particular, thereis no

occasion in the present case for acknowledging, as the Court did in
the Adnzissio~~'scase, that "an appreciation" is allowed "of such
circumstances of fact as would enable the existence of the requisite
conditions to be verified" z. The reason why, in the Admission'scase,
the Court adrnitted a right of rnembers to take "irito account any
factor which it is possible reasonably and in good faith to connect
with the conditions laid down" 3 in Article 4 \vas the special or
Ipolitical" character of those conditions. "The taking into account
of such factors is implicit in the very wide and very elastic nature of
the firescribed conditions; no relevant political factor-that is to Say,
none connected with the conditions of admission-is excluded. '"
The situation in the present case is entirely different. Registration
is not a political condition; it is a simple matter of objectively

ascertainable fact. In this respect it differs entirelv from the criteria
enumerated in Article 4 of the Charter of the United Nations, that
the candidate bc a "State" or "peace-loving" or "able and willing"
to carry out its obligations. If a right of appreciation or assessment
of "registration" is superimposed upon registration itself as the
criterion for determining size, in fact the criterion of registration is

' Z.C.J. Refiovt1948,pp. 62-63,
Ibid.p. 63.
* Ibid.
' Ibid. ltaljcs supplied. WRITTES STATEDIENT OF THE GOYERK.\IEST OF LIBERIA 71

being abandoned in favour of the criterion by which the validity
of the registration is being tested.
The point may be put in another way. Article 4 of the Charter of
the United Nations leaves it to "the judgment of the Organization"

to determine whether a State is able and willing to carry out its
obligations under the Charter. Such ability and willingness cannot
exist apart from the judgment of the Organization. Registration, on
the other hand, is a unilateral fact. It does not depend upon
acknowledgment by otherStates. If to it there is added, for example,
the requirement that there must be some additional connection
between the vesse1and the State of registration, tbis is to substitute

the additional connection for the test of registration. For the
reasons set out above, the Government of Liberia deems a substitu-
tion of this character to be impermissible.
Since it is the duty of any organ of an international institution
and, in the last analysis, of the Members thernselves ',to observe
the treaty provisions "when they constitute limitations on its
powers or criteria for its judgment" %,the Government of Liberia

snbmits that, in al1 the circumstances set out above, there has
been a breach of the duty to elect to the Maritime Committee two
nations which, in virtue of the quantity of their registered tonnage,
nere entitled to such election. For this reason the Maritime Safety
Committee cannot be said to have been constituted in accordancc
mith the I.M.C.O. Convention.

Part III

THE CONSTITUTIONA LALW OF THE ORGANIZATION

The Government of Liberia now turns to elaborate the second
ground on which it contends thatthe Maritime Safety Cornmittee was

not constituted in accordance with the I.M.C.O. Convention. This
ground, in brief, is that the States participating in the election to
the Marine Safety Committee did not exercise the powers conferred
upon them by Article 28(a) of the I.M.C.O. Convention in a manner
conformable with the general constitutional laurof the Organization.
It is the contention of the Government of Liberia that the legality
of the conduct not only of the organs of international institutions

but also of the Members themselves in relation to the activities of
such institutions is governed as well by general rules of international
constitutional law as by the express terms of the constituentinstru-
ment of the organization. These general rules are to be found hy
employing the same processes as are normally used for the deter-

Seethe Advisory Opinion an Admissioss, referred to abin wliicat p.62.
the Court says:"The judgment ofthe Organizationmeans the judgment of the
two organs mentioned in paragraph2 ofArticle4,and, inthe lastanalysisthat
of its Memben."
Vbbid.,p. 64.minatioii ofrules ofinternational law. Having regard to the character
of the rules in question, they must be' sought primarily in the

practice of international organizations and in general principles of
laiv drawn from the concordant asuects of various svsteins of
municipal administrative law.
Support for a proposition of this character is implied iii the terms

of the-~rincioal advisorv o~inions rendered bv the Court in connec-
tion &th i'nternational Constitutional such as the
opinions on Admission of a State to the United iVations ', Refiaration
for Injnries sugered in the service of the United Nations =, Egect of

Awards of Comfiensationmade by the United Nations Ad?nin.istratiue
Tribnnal3, Sozith-West Africa-Voting Procedz~re 4, and Jndgments
of the Adntinistrative Trihtcnalof the I.L.O. ufion complaints made
agaitzstthe UNESCO

The general rule upon which the Government of Liberia relies is
that when the Court is requested, asit is in the present instance, to
consider the legality of an election held by and organ of an inter-
national institution, it is entitled and bound to approach the

problem in much the same way as n~ould a municipal tribunal
invited to take under judicial revie~vthe exercise by any authority
of the powers with which it ma): be vested

' I.C.J. Refiorls 1948. p37.
' I.C.J. Reports 1949. p. 174.
1.C.J. Reports 1954, p.47.
' I.C.J.Reporis r955, p. 67.
I.C.J. Rtports 1956, p. 77.
Thero can heno real doubt that the conduet of the electioii tu the Maritime
Safety Committee fallç iuithin the scope of the question on which the opinion ai the
Court is soright. Although the Court is asked whethor the Alaritinie Safety Committre
is constituted in accordance mith the terms of the I.Jl.C.0. Convention. that
wording does not restrict the Court to an examination of the provisions of the
I.Al.C.0. Convention alone. The Court may examine the composition of the Maritime
Safety Committee by reference to both the substantive and the procedural require-
nients of the I.ïlI.C.0. Coiivention; and although the I.Af.C.0. Convention does not
in terms refer to tlie requirements which are examined above, it iscontended that
by operation oilaw such requirements are to be treatad as if they formed part of
the 1.hl.C.O. Coiivention.
The position is. in effect. analogous to that considered by tliçCourt in the Ad-
visury Opinion ori the Judgfnents of IhaAdmi,~irtrntiue Tribuna of the I.L.O. (I.C.J.
Ileporis2956, p. 77.)
Tlic issue in that case wûs wliether the I.L.O. Administrative Tribunal was
compctent to hear camplaints intraduced against U.N.E.S.C.O. by certain members
of the staff of the latter. Hy the terms of Article II, paragraph 5, of its Statute,
the r\drninistrativeTribunal was granted competence "to hear complaints alleging
non-observance in substance or in iorm. of the terms of appointment of oificials
and uf provisioiis of thc Staff Regulatioiis..". Severtheless, despite the apparent
limitation of the competence of the Tribunal to complaints nlleging non-perfor-
mance of mritten instruments-the terms of appointment and the provisioiis of
the Staff Kegulations-the Court held that the Tribunal was campetent to hear
complaints based upon the conduct of the Director-General of U.N.IZ.S.C.0.. upon
general consideratioiis relating to the international civil service and upon the
practice ofinternational organiratians. The Court. in short. held that a grant of a
power to review the validity of conduct by reference to conforrnity with a written
instrument carried with it the power to examine such conduct also in the light of WHITTEN STATE.\IEiL'T OF THE GOVERXJIENT OF LIBERIA 73

Therehas, in this connection, hoth in international and municipal
practice, developed a body of standards for determining whether
powers or discretions l have been validly exercised. In thc present
case, the Government of Liberia submits that the election to the

hfaritime Safety Committee on January 15, 1959, departed from
these standards in three respects:

(i) There was, in the first place, a procedural defect in the election
in that either those members of I.M.C.O. who voted against
Liberia voted in a manner inconsistent with the evidence of
size of tlie various ship-owning nations placed before them; or
they acted arbitrarily in voting without reference to any

evidence whatsoever.
(ii) Secondly, i~iat least one important aspect, there was a failure
on the part of the majority to act in a manner that can object-
ively be regarded as reasonahle and not arbitrary; and

(iii) Finally, there was a détournementde polivoir-a failuse on the
part of fourteen Members who voted against Liberia to exercise
their powers in accordance with the purposes implicit in

Article 28.
Each of these defectsin the clection is by itself sufficient to prevent
the Maritime Safety Committee elected on January 15, Igjg, from

being validly constituted in accordance with the Constitution of
I.RI.C.O.
In submitting, as it does, that the Court has a right to rcview the
mannes in which the Members of I.M.C.O. exercised the power of

election provided for in Article 28 (a) of the I.hf.C.0. Convention,
the Government of Liberia does not, of course, suggest that the
Court has the right to substitute its own discretion for that of the
Members. A submission of this character mould be difficult to
support by reference to analogous situations in either the inter-

national or the municipal spheres; nor is it necessary to the case
of the Government of Liberia for it to extend its submission so far.
The limit of its proposition is that the Court is entitled and bound
to examine the manner in which the decisiou taken hy the Assembly
mas reached. If the Court finds that the process by which hlembers

rulesof law associated with tlie instrunieAs.the Court said: "In order to denote
the competence of the Administrative Tribunal, it is necessary to consider these
contracts not only by reference to their letter but also in relation to the actual
conditions in which tliey were enteied into and the place which they occupy in the
orgaiiiratian.(Ibidp ..gr.)
Therefore, asit was in the case of tlie compctence of the 1.L.O. Administrative
Tribiinal.soit is in the preseinstance- adetermination of whether the Maritime
Safety Cornmittee has been constitutein accordance with the I.JI.C.0Convention
involves also a determinationof whether that Cornrnittee has been constitutedin
accordaiicc with the generalaw of thc Organization.
The Government of Liberiashould not, ofcourse,be takeii asadmitting that,
in respect of the eleçtioof "the eight", the Members of 1.Al.C.O. iiossesseany
discretion in the technicsense ofthe ward.74 WRITTEN STATEMENT OF THE GOVERNJIENT OF LIBEKIA

determined the identity of the States which were to serve as "the
eight" members of the Maritime Safety Committee did not meet
the requirements elaborated belou,, then the Court should hold that
the Maritime Safety Committee was not constituted in accordance
with the I.M.C.O. Convention.

A. The dzifyto act on the basis of and in accordance with evidence

The Government of Liberia believes that it is a proposition
generally accepted and applied that where a body is entrusted
with a power which may be exercised by reference to certain object-
ively determinable criteria, that power may not be exercised in the
absence of sufficient evidence as to the existence of the cnteria to
form a reasonable basis for the exercise of the power. Alternatively,
where the power is exercised after taking into account irrelevant
considerations or failing to take into account relevant ones, the
exercise of the power must be regarded as invalid.

The process of judicial review of situations involving allegations
of inadequacy of evidence is, it may be noticed, one which is directed
to a question of law, not to a question of fact. The Court does not
suhstitute its discretion for that of the authority vested with the
discretion. It merely determines mhether the conduct of the parties
falls within the scope of the powers which they enjoy. The niatter
was put in very clear terms by an eminent English judge, Du Parcq,
L. J. (later Lord Du Parcq), then Sitting in the Court of Appeal in
Bean v. Doncaster Amalgamated Collieries, Ltd.

He said :

"This view of the matter may bc expressed hy saying tliat,
when once the facts have been ascertained, then only one answer
to the question posed can be right. Opinions may differ, but that is
not to Say that more than one of the differing opinions can be
correct. Unless the Commissioners,having found the relevant facts
and put to themselves the proper question, have proceeded to give
the right answer, they may be said, on this view. to have erred in
point of law. If an inference fromfacts doesnotlogicallyaccordwith
and followfrom them, then one must Say that there is no evidence
supportois tomakean errorin lalei.'"nwhichthere isno evidenceto

Other aspects of the proposition have on a number of occasions

been laid down in terms bythe Englishcourts. Thus, in Re Bowman 2,
Swift, J., in explaining the grounds on which the courts might
quash the exercise of a discretion by a local authority, said:

'['y4412 Al1E K 279. at p. 28Italics supplied.
'[1932]2 K.B. 621, at p. 634. \VRITl'ES ST:\TE>lEST OF THE GOVERSAIEST OF LIBERIA 75

"There rnav some dav arise a case ...in which it mav be said that

This was approved and followed by the present Lord Chief Justice

of England in Goddardv. Minister O/ HozwingandLocalGouernnzen 1t.
Referenc~ m~ ~als~ be made to a rece~t~a~ ~a~ ~~.itative work
(Ivvoted to n coi;sidcration of tlic cxcrcise of I>o\versin English I:i\i.

Profcssur de Sniitli. iii liis Judiciul h'euim oi .41/n1111islrrrli:tl.c el~o~i.
summarizes the 110sitiun ii~ Engliili I:i\r in th<,fiilli>\\,ingternis:

"If the exercise of a d~ ~~e~i~n~~ ~ ~ ~ ~ has been infliienced bv~ ~
considerations that cannot lawfiill; be taken into accourit, or hi
the disregard of relevant consideratioiis, a court will hold that the

power has not been validly exercised, iinless the jurisdiction of thc
coiirts to interfere has been excluded [which, of course, is not the
case in tlic present instance]. It is, of coiirse, immaterial that ari
aiithority may have considered irrelcvant matters in arriviug at
its decision if it has not allowed itself to be influenced by thosc

matters. 'Cheinfliience of estraneoiis matters will be manifest if
they have led the authority to make an order that is invalid exfucie,
or if the autliority has set thern oiit as rcasons for its order or has
otherwise admitted their infliience. Iii otlier cases, the Courts must
determine whether their influence is to be inferred from siirroiinding

circumstances. If the influence of irrelevant factors is established,
it does not appear ta be necessary to prove that they were the solc
or even the dominant influence: it se~~, ~ ~--- to orove -hat tlicir
infliiencewassiihstantial. For this reajon ...there may he a practical
ad\,antaac in foundina a challenge to the validitv of a discretionary

act on trie basis of iGelevant c~iii~ ~rations raïher than imoroilcÏ ..
purpose, thoiigh the liiie of dcmarcation hetwcen the two qoiinds
of invalidity is often imperceptible. 2"

The power of the Courts in the United States of America is. if
anything, even broader in this respect than is that of the tribunals

in England. American courts will reviexv administrative findings
which are not supported by "such relevant evidence as a reasonable
mind might accept as adequate ta support a conclusion" 3.

A similar power of review of the tacts is asserted in the French
system of administrative law. M. P. L. Josse, at one time president
of the first sovhs-sectionof, the Cuiiseil d'Élut, after observing that

originally the Conseil d'Etut left to the judge of first instance a
considerable latitude of appreciation, described the later devclop-
ment in that tribunal in the following terms:

. eiiiiii [1~c:ons~ild'Étnr7 se rciiil;iiii coniptc <III<1.,.~,t>ii~uiq rii'il
\~iiil;iiijt:rl:s~.ri.er;i;iit 1,.1~11s1usii\,eiit illiisi,i:i,port; dirrcie~neiit

'[1958] 3 Ail 1S.R. qSz.
Pp. 203-zoq. \\'ards in parentheses added.
a ConsotidaItd Edisoit Co. v. ~Volionnl Lobor Hela/io>ls Board, joj U.S. 197. 229

(1938).76 \\.RITTEX çT.+TEllEST OF THE GO\'ERSAII~ST OF LIBERIA

son cxanien sur les faits eux-mêmes, recherchant d'un point de vue
ohjectif s'ilsjustifiaient la solution de droit: ce qiii a entraînécomme
consé<lueiiccl'obligatioii faite au juge siibordoniié de motiver sa
décisionen relevant lesfaits servaiit de soutien à son appréciation. '"

B. Reasont~bleness
The doctrine that discretionary powers inust be exercised
reasoiiahly is also one which is common to a nuinber of systems
of law.

It was, for example, applied by the United Nations Ad~niiiistrative
Tribunal in the case of Jalhiard 2. Under Staff Rule 104-8 the
Secretary-Geiieral \V:LS called upon to decide the nationality of a
staff rneinhcr by determining the State with which he was "most
closely associated". In relation to this power of the Secretary-

General, the Tribunal said:
"Tliat heiiig so, the Tribunal can, without substituting its judg-
ment for that of the Secretary-General. consider whether, having
regard to tlic circiimstances, it was reasonable for the Secretary-
General to coiiclude that the Applicaiit was most closely associated
with one State ratlier than with another. 3"

The Tribunal did, in fact, decide in that case that "the links are
siich fhat, in the excrcise ofliis discretionary powcr, it wasreasonable
for the Kespondent to conclude that ... the United States is the
State with \\-hich the liespondent is most closely associated. &''
Xeoertheless, the case, \vhich is not an isolated one, stands as
evidence for the principle that the cvidence upon which a discretion

has heen csercised may be reviewed by a tribunal for the purpose of
determining whether the discretion has heen reasonably exercised.
The same principle is reflected in the follo\ving statement which
represents the position in Italian law:

"Trnuisumenlo dei /altiacquires the character of eccesso di potere
when the coiiclusions appear to he in striking contradiction with
the premises, or arc drawn from facts whicti stand in flag~ant
coiitrndictioii with the evidence or are the direct result of liaving
neglectcd circuriistances which are esscntial to the decision of the
dispute.
The classic statement of the rule relatiiig to the requirement of

reasonablencss in English administrative la\\, is now contained in
the following passage from the judgment of Lord Greene, M. R.,
in .4ssocialed Prouii~ciul Picture Homes Ltd v. Wedi~esbury Corpora-
tion 8.

Liu16jubilaire 161.17.1a,s citedinHamson, Ezeculiue Discrctio+toitd Judiciol
Conlrol (1954)p..175.
*Judgmrnls O/Ihc United ~Vnlioasddtni>&islraliueTribu,tal. 1950-195S.o. 62.
P. 340.
4 Iba'd.349.
24 hugust 1905. n. 409.La GiusliziiAm+>~inistraliungti, 1, 439. quoted in
Galeotti, Jud,ciaLotrbolO/ Public ArtthorilieiitE:'irglnd,tdItuly(1954). p.131.
[ig48] 8 li.13923. \VKLTTES STATEXIEKT 01.' THE GOVERS>lEST OF 1-IBERIA
77
"It is troe that the discretion rnust be esercised reasoiiably. Xow
what does that mean? Lawyers familiar with the phraseology
commonly used in relation to esercise of statutory discretions often
use the word 'unreasoiiable' in a rather comprehensive sense. It has
frequently been used and is frequently used as a general descrip-
tion of the things tliat iniist not be done. For instaiicc, a pcrson
entriisted with a discretion inust, so to speak,direct himself prol>erly
in law. He miist cal1Iiis own attention to the mattcrs which lie is
bound to consider. He must exclude from his consideration matters
which are irrelevant to what he has to consider. If he does not ohey
those rules, lie may truly he said, and often is said, to be acting
'unreascnably'. Similarly, there may be something so absiird that
no sensible person could cver dream that it lay within the powers
of the authority. \Varrington L. J. in Short v. Poole Corporation,
[rgz6] Ch. 66, go, 91, gave the example of the red-haired teacher,
dismissed becaiise she had red hair. That is unreasonable in one
sense. In another sense it is taking into consideration extrancoiis
matters. It is so ~inreasonablethat it might almost be described as
being done in bad faith; and. in fact, al1 these things run into one
another."

C. Détozlrnemend t e pozcvuir
It is frequently difficult to distinguish between thosc cases in
which esercises of discretion have been quashed on the ground of
lack of evidence and those quashed as being unreasonable or

arbitrary. Equally it isnot alivays easy to draw a clear line between
those two types of defect antl the third class to which the Govern-
ment of Liberia now turns-détozir>zen~entde porcvoir. This arises
when a pomer, conferred primarily for one purpose, is exercised in
a manner comuatible with its terms. but in fact alien to its true
objects..
This principle of the invalidity of a détotcrneniend te poilvoir may
be found in the jurisprudence both of international and municipal
administrative tribunals, and is one which commends itself by ils

inherent reasonableness forapplication as a general principle of law.
The principle has becn clearly and repeatedly statcd by the
Administrative Tribiinal of the UnitedNations. Aleadingillustration
of the view of the Tribunalon this question is provided by the terms
of its alvard in the case of Mauch. With referencc to the power of
the Secretary-General to terminate temporary-indefinite appoint-
ments "in the interest of the United Xations", the Tribiinal
declared :

"\\'hile the iiieasiire of power here was intended to be left coni-
pletely within the discretion of the Secretary-General, this woiild not
authorize an arbitrary or capricious exercise of the po\irerof termin-
ation, nor the assignment of specioiis or untruthful reasons for the
action taken, siich as woiild connote a lack of good faith or diie
consideration for tlie riglits of tlie staff member iiivolv"'.

p.zGG,gztIL 272.theUnifeN dadionA sdr,iirisfr Trirunnl, qgo-1957. No.54, In at least sixteen other instaiices of a simiiar character the
Tribunal used an almost identical formula:

"Such discretionary powers must be exercised without improper
motives so that tliere shall be no misuse of power, since any such
misuse of power would cal1for the rescinding of the decision. '"
'
The doctrine of détournement de $ouvoir also finds a place in the
jurisprudence of the European Coal and Steel Community. Although

express provision is made in Article 33 of the Treaty establishing
the Community for recourse to this concept, there is no reason to
believe that this provision is anything more than declaratory of
one of the grounds on which the Court of the Community, once it

was granted a power of review, could find decisions of the High
Authoritv to be unlawful.
The court of the Community has in a number of decisions
determined that for a détonvnementde 9oztvoir to be established it
must be shown that the major or dominant reason for taking a

particular decision was improper 2.
There is no doubt that a similar principle exists in English law.
It has been clearly and forcefully statedby Lord Justice (nowLord)
Denning in the case of Earl Fitzwilliam's WentworthEstate Co. Ltd.

v. Minister of Town and CoufitryPlanning in the following terms:
"... But sometimes the validity of an act does depend on the pur-
uose with which it is done ...and in such a case. when there is more

thln one ~NI~~IOSC,111<,In\\il1\Ca).sIlai regard 10 III<iionli11;intI)iir-
1.011,li tliv ~i~iiiiiiinnrpiirposr oftti~sc c<~nserii~d iî iinla\vfiil. then
111::ICIclont:is i~iv:ili(;III~11 15ilut tu Le ctirt,lln S.~\,I"Itliat t11ev
liad some other prpoSe in mind which was lawfil ...
So also the validity of government action often depends on the
purpose with which it is done. There, too, the samc principle applies.
If Parliament grants a power to a government department to be
used for an authorized purpose, then the yower is only validly
exercised when it is iised by the department genuinely for that
purpose as its dominant purpose. If that purpose is not the main

purpose, but is subordinated to some other purpose which is not
authorized by law, theu the department exceeds its powers and the
action is invalid. The department cannot escape from this result by
saying that its motive is immaterial. Just as its real purpose is
crucial, so also is its true motive, because they are one and the
same thing. 3"

Judgmeitfs of fhe Uniled Nations Ad+iiinisfrative Tribunal,1950-1957 So. 34,
at pp. GR, 75.79, 84 87, 94. 99, 104, ioR. 1x3, 213, 216,222,?36,~4a 1nd 246.
See French Republic v. High Aulharity of the Europaan Cool and Steel Com-
munily, O@cial Gazette ofthe European Coal arrd Steel Communily, 4 (ig55)p ..22;
InlernationalLaw Reports, Ig54,p. 309. See alço Governmenf O/the llalian Republic
v. The Hieh Aulhovitv OfficiolGrzlelte. etc.. loc. c22:.Infernafional Law Reborts.

. -" . ,. . " , " "d.U -
one,the above quoted statement of principle does not represent a poinofdifference
between him and his colleagues. \\RITTEX ST.4TEllEKT OF THE GOVERNMEST OF LIBERIA 79

The concept of détournement de fioyvoir is, of course, also well
known in French law. The Conseil d'Etat will read into a statute,
framed in general terms and apparently giving an unlimited

discretion, a special and limited purpose; and it will quasli as a
détozirnemeiît de fiouvoir the use of the power or discretion not
clearly directed to the attainment of the purpose thus read into
the statute '.
The doctrine erists also in Italian law, where the position has
been set out in the following terms by an Italian authority carrying

out a comparative study of judicial coutrol of public authorities in
England and Italy :

"An administrativc act may hc challenged on the ground of
sviamento rZipotere, when the public authority had exercised its
power in cases and for purposes other than those for which it was
given by law. In such a case, the administrative decision may issue
from the piiblic authority, withjn the bouiidaries of its province,
and in compliance witli al1legal requirements, but it is not according
to the purpose intended by law. 2"

He continues:

'l'liccirciiiii~t;iIi:iriIic~,iit,lii.iiirlaiI.:i~lc~tr$.i>i<iltb~iii\rcrs
I,~II~iir I»<I/<Iid< I,s II,,I>l.,iriiun: iht,i xiit<ii:cof dC1utrr1r~'ntc7rl
.I L,rr.,.rr. '1'0ni.tk:iLX,,,cl ,/;~rv~rn,~~nri~~bf,rt:,,irii iis~ificicn~
thit the public authority has piirsued an objéctdifferent from the
one which is allowed hy law. The way in which it is disclosed is irre-

levant to the existence of this ground of challenge. Whether it is
apparent on the face of the proceedings bcing stated in the reasons
for the act, or whether it may bc detected only by the supporting
evidence, whether the different abject is opcnlydeclared or whether
it is concealed under a prctence of the one which alone is permitted
in law has no hearing on the fact of its cxercise. Al1those cases are
brought under one and the same heading of sviainento di potere, as
a particular type of eccesso di potere. 3"

The operation of these principles in Italian law may be illustrated
by the follouing examples. In the case of Fracchia v. Min. Pubblica
Istruzione it was held that the transfer of a schoolteacher, made ex

ofjicio by the educational authority, was unlawful, as being a
de'tozirnement de pouvoir, when it appeared that the decision had,
been made not on real grounds of an educational kind, but on
considerations relating to the particular interests of the transferred
teacher. The order was challenged by those other teachers whose
interests were affected by the fact that a post had thus been filled

See the case ofTabouret et Laroche, C.E. (Ass.)July 9, 1943;11. ,945. J. 163;
and the comment by Harnson, Executioe Discretio>and Judicial Control (1954).
p. 167.
a Galeotti,The Judicial CoiitroofPttblic AuthorilieiiEngtarzd and Ztaly (~954).
pp. 13-110.
Zbid.,p. 111.80 CVRITTES STATEUEKT OF THE (;OVEKSILIENT OF LIBERIA

which woiild otherwise have been open to compctition *.Again, in
Bruno v. Ente iVaz. Educ. Fisica, it was held that the dismissal of
a civil servant, formally forreasonsconnected with the improvement
of the civil service, but in reality for disciplinary reasons, \Vas
unlawful. A factor in the case was that norm~illy disciplinary
matters were dealt with in a different way, with special safe-

guards for the servant 2.
D. The relevanceof "good jaith"

The Government of Liberia should perhaps observe that the
defects in the exercise of a power, as referred to above, can perfectly
well occur without any imputation of bad faith (in its less pleasant
sense) to the party at fault. As Professor de Smith points out, in

respect of English law, "-4 discretionary power may be abused in
good faith or in bad faith" 3. The same is true of Italian law. Thus
Dr. Galeotti States the position as follows:

"The circiimstance that the public autliority had exercised its
powers bonaor mala fidahas no bearing on the existenceof détoz6r-
nementde poz~voirT . o make a case of ddtournenientde $ouvoir,it is
sufficientthat the public authority has pursued an object different
from the one which is allowed by law. '"

In these circumstances the Government of Liberia considers that
the Court may determine that the election to the Maritime Safety
Committee was void for the reasons set out above without rerluiring
a finding of bad faith on the part of those States that voted against
Liberia.
However, within these limitations, some reference to the doctrine

of good faith as developed by the Court is relevant as supporting
generally the propositions of law set out above. The Court has, in
the past, expressly re-affirmed the importance of "good faith"
in the performance of treaty obligations, as for example in the
Advisory Opinion on Admission of a State to the United Nations 5.
However, it seems improbable that the Court intended to refer to

a technical concept of "good faith" which could only be negatived
by proof of the existence of an equally technical "bad faith", in the
sense of dishonesty, fraud or malice. The improbability of the
conduct of States being open to description in these terms is
equalled only by the practical impossibility of proving such bad
faith. Consequently, unless some wider meaning can be attributed

to "good faith", "the reservation for the case of bad faith is", to
employ the words of Lord Radcliffe, "hardly more than a for-
mality" 6.Since it seems unlikely tliat thecourt \voiildhaveregarded

La GiuvisOrudenra Ilaliasai929, p. 175 as citein Galeottiop. cit., pIII.
Judicial Review of A<lminislrafiue Act(1959). pp. 190, 199-200.
The Judicial Co+tlrolof Public Authorifies in Engamid Ilaly(1954). p.HI.
I.C.J. Repavts 194p. 57.
Vakkudu Ali v.jayaralnt,[19jr]AC. 66, at p. 77. \VRITTEN STATEMENT 01: 'THE GOYEKNMEST OF LIBERIA 81

the concept of "good faith" as a mere forrnality, it becomes
reasonable to assume that "good faith" does in tact bear some wider
meaning than the opposite of dishonesty, fraud or malice. The
Government of Liberia submits that, in the context of international
administrative law, the only effective content to be attributed to
the concept of "good faith" is that of regarding itas a generalization
of the particularrules referred to above. Thus, the requirement of
good faith in the exercise of a power dernands that the party
exercising the power act only on the basis of adequate evidence,
reject irrelevantevidence, act reasonably and use his powers only

for the purpose for which they were intended.

II. THE VIOLATION OF THE RULES

The Government of Liberia considers that the rules referred to
above have been violated in three distinct respects by the Mernbers
who voted against Liberia and that, in consequence, the Maritime
Safety Committee cannot be regarded as constituted in accordance
with the 1.RI.C.O.Convention.

A. Determination oi the largestship-ozeiningnations on
insuficient evidence

In the first place, the failure to elect Liberia and Panama to the
Maritime Safety Committee shows that Members apparently
regarded themselves as free to employ some criterion other than
registration for the purpose of determining the size of a ship-owning
nation. On the assumption that registration is not the correct
criterion (which assumption is, of course, not admitted), then
Members rnust be deemed to have employed some particular
criterion for deterrnining the eligibility of the first eight States
elected to the Maritime Safety Committee. \Vere this not the case,
then the choice of such rnembers must be regarded as a matter
falling within the absolute discretion of Members-a position which
is in law quite incompatible with the fact that Artic&(a) contains

relevant restrictiveconditions.
On this basis, what criterion could Members have employed?
For reasons already stated, the Govemment of Liberia does not
consider that it need speculate upon the possibilities. But for
present purposes speculation is irrelevant. The fact is that the
Assembly had before it no evidence on the basis of which it could
possible apply any test other than that of registration. The only
information with which it had been provided was the Secretary-
General's List of Registered Tonnages. It had also been informed
by the delegate of Liberia that of the tonnage registered under the
Liberian flag a sufficient quantity was actually owned by Libcrian
nationals or companies to bring Liberia within the eight largest

782 \\'RITTEX STATEMEST OF THE GO\.ERS>IEST OF LIBERIA

ship-owning nations, even if the test of size was "ownership by
nationals" '.This statement was never contradicted.
In short, if criteria other than registration were employed (and
it must be deemed that some single criterion was) then there was no
evidence either that Liberia was not among the eight largest ship-
owning nations or that the States in fact elected were, by contrast,

among the eight largest ship-owning nations.

B. Assessrnentof "An important interest in MaritiwteSafety"
Insuficietzt evidence: Unreaso>iableness
The second violation of the rules set out above rekites to the
requirement of "an important interest in maritime safety". The
Government of Liberia has aiready contended that this expression

does not create a condition capable of overriding the rights of a
State which satisfies the requirement that it be one of the eight
largest ship-owning nations. However, should the Government of
Liberia be wrong on this point, it considers that any vote which
turned on a discretionary determination that Liberia did not have
an important interest iii maritime safety must be regarded as having
been taken in the face of contradictory evidence and as being
unreasonable. Afterall, what evidencewas there before the Assembly
that any Member had an important interest, or even any interest,
in maritime safety? On what information could States have formed

a view upon this question? If the matter was not ta he determined
quite arbitrarily, some objective fact must have been of relevance;
and that fact, as so many States conceded, is thefact of registration.
For it is only by the power over a vesse1which flowsfrom the fact
of registration that a State can implement its obligations in respect
of maritime safety. Appendix III, already referred to, shows clearly
the class of matter which falls within the notion of maritime safety.
IVhiIeit is not attached to this Statenient primarily for the purpose
of proving that Liberia has such an interest, for it is the contention
of the Government of Liberia that that is not the question before
the Court, it does in fact show that, ,like other maritime nations,

Liberia is active in the discharge of the responsibilities which attach
to the State in which vessels are registered. But there was no state-
ment of this character, or any other evidence, before the Assembly
on which the Members could have formed an estimate of the degree
of interest in maritime safety possessed by the candidates for
election to the Maritime Safety Committee.

C. Détournement de pouvoir

Thirdly, the Government of Liberia impugns the composition
of the Maritime Safety Committee on the grouncl that, in al1 the

' Seethe terrnsofthedraft resolution read oby >Ir. Weeks(thedelegate of
Liberia)atthe eighth meeting of the Assembly on January 15,,9(IhlCO/A.r/
SR.5, p.7). WRITTEN STATEMENT OF THE GOVERNMENT OF LIBERIA
83
circumstances, the exercise of their vote by the fourteen members
of I.M.C.O. who voted against Liberia constituted a détournement

de $ouuok. In the iiew of the Government of Liberia, the election
was tainted from the outset by the improper motive of a number of
the participants. That motive was to transform an otherwise
uncontroversial matter, namely, the election of the Maritime Safety
Committee, into an attack upon the so-called "flags of convenience".
The delegate of the Netherlands explained the reasons for his
conduct in terms which can leave no doubt as to their lack of
relevance to the purposes for which the Maritime Safety Committee

was constituted. He said that "..his Governnient had niade abund-
antly clear on many occasions thatit deplored the institution of the
so-called flags of convenience". Then, referring to the amendments
to the United Kingdom resolution which had been proposed by the
delegation of Liberia in an attempt to safeguard her rights, he
concluded :

"Adoption of the amendments would be tantamount to accepting
the institution of flags of convenience. For that reason he would
vate against the amendments. "'

The delegate of the United Kingdom said much the same thing
when, at the very outset of the debate, he declared that "it would
be wrong for the Assembly when discussing it (the election), to
pretend to ignore the essential difficulty, namely, the special
position of Liberia and Panama" %.His next sentence-"There was
clearly no question of dealing \<<ththe problem of flags of con-
venience, which lay outside the limit of that discussion"-does
nothing to diminish the impression created by the first sentence
that while the competition of non-traditional flags could not be

directly disposed of by the Assembly, the United Kingdom was
determined to strike at Liberia and Panama in any context in
which opportunity might present itself.
The United Kingdom delegate was, indeed, unable either to
disguise his true objective of furthering national economic and
commercial objectives or to rationalize his conduct in terms of the
Convention. The fact remains that those who concerted to exclude

Liberia and Panama were seeking, in total disregard of their legal
obligations, to substitutefor an accepted international standard an
unexpressed and undefinedalternative. Yet the substitution of this
alternative, for al1 its lack of precision, cannot be regarded as
anything other than a surreptitious amendment of the I.M.C.O.
Convention-a modification which is permissible only within the
framework and in accordance with the methods laid down in Part
XIV of the Convention; and not otherwise.

In short, the Government of Liberia submits that the observations
of the delegates of the United Kingdom and of the Netherlands
See Summary Record.EighthMeeting,JanuaryIj,1959IMCOIA.rISR. pp.2-3.
Zbid.SeventhMeeting, Januar14. 1959,IMCO/A.I/SR. ~.. 2.3.indicate that their conduct was influenced not by a boliafidedesire to
determine, in the context of the advancement of maritime safety,
what were the largest ship-owning States. They were instead
dominantly motivated by the essentially irrelevant and conse-
quently improper purpose of striking a blow at the non-traditional
maritime nations. Moreover, as regards the other States which
acted in concert with the United Kingdom and the Netherlands,
it seems improbable that they cast their votes for reasons different
in any material respect from those advanced by the delegations
which appear to have taken the lead in this matter.

FINAL CONCLUSIONS

A. In the submission of the Government of Liberia, the Maritime
Safety Committee elected on January 15,1959, was not constituted
in accordance with the I.M.C.O. Convention for the following
principal reasons:

I. There was a failure to comply with the terms of Article 28 (a) of
the Convention which require that the eight largest ship-owning
nations shall be elected to the Committee, since Liberia, which
is among the eight largest ship-owning nations, whether tested
by the criterion of registration or of ownership by nationals, was
not elected.
z. Alternatively, the election was invalidated by certain funda-
mental defects of procedure and by détournemend t e pozbvoir.

B. The Government of Liberia submits that the Court should
answer in the negative the question which has been put to it.

The Government of Liberia takes the present opportunity of
making the following declaration:

If the International Court of Justice decides that the Maritime
Safety Committee elected on January 15,1959, "as not validly
constituted in accordance with the I.M.C.O. Convention and if, in
consequence, Liberia is enabled to take her nghtful place on the
Committee, the Government of Liberia will raise rio question as to
the validity of the work on maritime safety done within I.M.C.O.
during the period prior to the date on which Liberia becomes a
member of the Maritime Safety Coinmittee. WRITTEX STATEnlEgT OF THE GOVERSAIEXT OF LIBERIA 85

APPENDICES

1.Intevnationul Treatiesand Conventions
II. The Pre9aratory Work for theI.M.C.O. Cofzvetttion

III. TIzeLibevian il/laritimeProgramme. AppendixI

EXTRACTS FROM TREATIES AND CONVENTIONS ILLUSTRAT-

IXG THE USE OF REGISTRATION AS A CONNECTIXG FACTOR
IN hlARITIhiE AïATTERS (See above, pp. 48-j3) '

Table of Contents

A. Mzrltilateral (in chroiiological order)

I. Treaty of.Mannlieim, 1868.
2. Police of the North Sea Fisheries, Convention on, 1882.

3. Barcelona Declaration recognizing the right to a Flag of State
having no Sea-Coast, 1921.
4. Barcelona Convention on the Regime of Navigable Waterways of
International Concem, 1921.
j. Inspection of Emigrants onShipboard. IL0 Convention Xo. 21,1926.
6. Repatriation of Seamen. IL0 Convention Xo. 23, 1926.
7. Safety of Life at Sea Convention, 1929.
S. Load Line Convention, 1930.

9. Annual Holidays with Pay for Seamen. IL0 Conveiition No. 54.
1936.
IO. Sickness, Injury or Death of Seamen. IL0 Convention Xo. 55, 1936.
Ir. Sickness Insiirance of Seamen. IL0 Convention No. j6, 1936.
12. Hours of \Vork on board Ship and AIanning.IL0 Convention No. 57,
1936.
13. Fishing Nets and the Size Limits of Fish, 1937.
14. Final Act of International Fisheries Conference, 1943.
15. Provisional Maritime Consultative Council, 1946.

16. Food aiid Catering for Crewson Board Ship. IL0 Convention Xo. 68,
1946.
17. Certiticatioii of Sliips'Cooks. IL0 Convention No. 69, 1946.
18. Medical Examination of Seafarers. IL0 Convention No. 73. 1946.
19. Safety of Life at Sea Conventioii, 1948.
20. Vacation Holidays with Pay for Seafarers. Revised 1949.IL0 Con-
vention Xo. 91.
21. Wages. Hours of \Vork on Board Shipand Manniiig. Revised 1949,
IL0 Coiiverition No. 93.

22. Junsdictioii in Matters of Collision, 1952.
23. Preventiori of l'ollution of the Sca 1)yOil, 1954.

' Thefollowing aùbreviations have keii ernpluyed in this Appendix:

L.N.T.S-League of Katiom Treafy Series.
U.N.T.S.-United Kations Trealy Scrics.
U.S.T.S.-United States Tvenly Series.
U.S.T.1.A.S.-United States Tvealirand olhrr IlbIern~lio>ialAclr Series. WRITTEIN STATEMEXT OF THE GOVERNMENT OF LIBERIA 87
24. International Convention Relating to Stowaways, 1957.
25. Limitation of the Liability of Owners of Sea-going Ships, 1957.

B. Bilateral (in alphabetical order)

26. Argentine Republic-Brazil, 1940, Commerce and Navigation.
27. Belgium-USA, 1845, Treaty of Commerce and Navigation.
28. Belgium-USA, 1875, Treaty of Commerce and Navigation.
29. China-USA, 1946, Treaty of Commerce and Navigation.
30. Czechoslovakia-Poland, 1947. Communications Agreement.
31. Estonia-USA, 1925, Treaty of Commerce and Navigation.
32. Finland-USA, 1934, Treaty of Friendship, Commerce and Navi-
gation.
33. Finland-USA, 1952, Double Taxation.
,
34. France-USA, 1939. Shipping and Aviation Taxation.
35. Navigation.ly, 1959, Treaty of Friendship, Commerce and

36. Germany-USA, 1923, Treaty of Friendship, Commerce and Navi-
gation.
37. Germany (Federal Republic)-USA, 1954. Treaty of Friendship,
Commerce and Navigation.
38. Greece-Iran, 1931, Establishment, Commerce and Navigation.
39. Greece-Italy, 1948, Treaty of Friendship, Commerce and Navi-
gation.
40. Greece-Lebanon, 1948,Treaty of Consular Representation, Navi-
gation.
41. Greece-USA, rgjr, Treaty of Friendship, Commerce and Naviga-
tion.
42. Greece-USA, 1959, Double Taxation on Income.
43. Honduras-USA, 1927, Friendship, Commerce and Consular Rights.
44. Iran-USA, 1955. Treaty of Friendship, Commerce and Navigation.
45. Ireland-USA, 1950, Treaty of Friendship, Commerce and Naviga-
tion.
46. Italy-Lebanon, 1949, Treaty of Friendship, Commerce and Navi-
gation.
47. Italy-USA, 1948,Treaty of Friendship, Commerceand Navigation.
48. Japan-USA, 1911, Treaty of Commerce and Navigation.
49. Japan-USA, 1953, Treaty of Commerce and Navigation.
50. Korea-USA, 1956,Treaty of Commerce and Navigation.
j~. Liberia-USA, 1938, Treaty of Commerce and Navigation.
52. Liberia-Gennany, 1931,Treaty of Friendship, Commerceand Navi-
gation.
j3. Netherlands-USA. 19j6, Treaty of Friendship, Commerce and
Navigation.
54. Netherlands-USA, 1948,Double Taxation.
55. Nicaragua-USA, 1938, Double Taxation.
56. Norway-USA, 1928,Treaty of Friendship, Commerceand Consular
Riehts.
57. Paraguay-USA, 1859,Treaty of Friendship, Commerce and Navi-
gation.88 WRITTEN ST.4TEMHXT OF THE GOVEKNMEST OF LIBEXIA

58. Spain-USA, 1902, Treaty of Conimerceand Xavigation.

59. Sweden-USA, 1939, Shipping and Aviation Income.
60. United Kingdom-Denmark, 1901, Fisheries, Fiiroe Islands and
Icelarid.

61. United Kingdom-Iran, 1959, Treaty of Commerce, Establishment
and Navigation.
62. United Kingdom-USA, I94j, Double Taxation.

63. U.S.S.R.-Iran, 1940, Treaty of Cornnierceand N;ivigation.
64. U.S.S.K.-Yugoslavia, 1940, Treaty of Commerce and Navigation.

1. Treaty of Mannhein~,April 17, 1868 l
"Article 2. (3) Sera coiisidérécomme appartenarit à la navigation
au Rhin tout bateau ayant le droit de porter le pavillon d'un des
Etats riveraiiis, et pouvaritjustifier ccdroit au moyen d'un dociilnent
délivrépar l'autorité compétente."

z. Convention/or Regulating the Policeof theNorth Sea Fisheries, May 6,
-~82
"Article j. Les bateaux de pêchedes Hautes Parties contractantes
soiit enregistrés d'après les rhglements administratifs des différents
pays..."

3. Declarfltior~recognizing th8 Right tu a 1;lag O/ State hauing no Seu-
Coast,April 20, 1921
"The undersigned, duly authorized for the purpose, declarc that
the States wliicli they represent recognize the flag flowii by vessels
of any State having no sea-coast which are registered at some one
specified place situated iri its territory; such place shall scrrc as the
port of registry of such vessels."

4. Co~zuentionand Statute of the Regime of Navigable Wuterways of
International Concern,April 20, 1921 a
"Article 3. Subject to the provisions contained in Articles 5and ri,
each of the Contracting States shall accord free exercise of navi-
gation to the vessels flying the flag of any of the other Contracting
States ..."

j. Co~zvention(No. 21) relutinc to Simplificatio~zof the Iizspection of
Emigrants on Shipboard, June j, 19~0'
"Article 3. If an officialinspector of emigrants is placed on board
an emigrant vessel he shall be appointed as a general rule by the
Government of the coiintry whoseflagtlie vessel flies.Such inspector
may, however, be appointed by another Govemment in virtue of an
agreement between the Government of the country whose flag the
vessel fliesaiid one or more other Governments wbose nationals are
carried as einigrants oii board the vessel."

De >IartensNouveau ~ecuek géndvnl 2,,p. 355.
De Martens, Nouveau Recueil génd~al9.p. 556.
L.N.T.S. 7, p. 73.
L.N.T.S7. ,p.35.
W.N.T.S. 38,p.281. ~VRITTEN STATEZIENT OF THE GOVERN>IENT OF LIBERIA
89
"Arliclc 5. 1. The officialiiispcctor shall eiisure the observaiicc of
the rights which emigrants possess uiider the laws of the country
whose flagthe vessel flies,or siicliother law as isapplicable, or nnder
international agreements, or the terms of their contracts of trans-
portation.
2. The Government of the country whose flag the vessel fliesshdll

communicate to the officialinr;pector, irrespective of hisnationality,
the test of any lawsor regulations affecting the condition ofemigrants
which may be in force, and of aiiy international agreements or any
contracts rclating to the rnatter whicli Iiave beeri comiriuriicated to
siich Governmeiit."
"Article 7. 1. Within eight days after the arriva1 of tlie vesselat
its port of destination, the official inspector sliall make a report to
the Govcriiment of the country whosc flag the vessel flies..."
6. Conueirliorr(No. 23) co?zcernit~tghe Kepalrintion of Seameir,June 23,
1926 '

"Arlicle 6. The public authority of thc coiintry in which the vessel
is registered shall be responsiblc for siipcrvisiiig the repatriation of
any member of tlie crew in cases where this Conventioii applies,
whatever may be his nationality, and where necessary for giving
him his expenses in advance."
7. Sufety of Life ut Sea Corrventioii(igzg), May 31. 1929 '
"Article 2. A{~)ilicationsand Definitioiis:

1. The provisions of the prescnt Convention shall apply to ships
belonging to countries the Governments of wliich are Contfacting
Governments: and to ships belonging to territories to whicli the
preseiit Convention is applied under Article Gz, as follows...
3. In the present Convention, unlessexpressly provided othcrwisc-
(a) t\ ship is regarded as belonging to a coiintry if it is registered at a
port of tliat country;

(b) The expression '.4dministratioii' ineans the Government of tlie
country in Lishichthe ship is registcred; ..."
S. Load Linc Corruention(1930). July j, 1930
"Article 2. Scope of Convention.

x. This Convention applies to al1 ships engaged on interiiational
voyages, which belong to countries tlie Governments of which are
Contracting Governments, or to territories to which this Convention
is applied iinder Article 21, except..."
"Article 3. Definitions.
In this Convention, unless expressly providecl otherwisc-
(a) t\ ship is regarded as belonging to a country if it is registered
by the Government of that coiintry;

(b) The expression 'Administration' iiieaiis the Government of the
country to which the ship belongs; ..."

U.N.T.S. 38, p.315.
2 L..V.T.S. 136, p. 81.
a L.N.T.S. 135,p. 30190 kVRITTES STATElIEST 01' THE GOi'ERSllEST 01: LIBERI.4

"Article 9. Siirvey.
The survey and markingof shipsfor the purpose of this Convention
shall be carried oiit by officers of the country to which the ships
belong ...In cvery case the Government concerned fully giiarantees
the completeness and efficiencyof the survey and markiiy."

"Article II. Issue of Certificates.
...Ail International Load Line Certificate shall be issued by the
Government of the coiintry to which the ship belongs ..and in evcry
case the Government assiirnes full responsibility for tlie certificate."
9. Conve~ttion (No. 54) concerningAnnual Holidays witAlJayforSeurneil,

October 24, 1936 1
"Article I. S. l'liis Convention applies to the master, officers and
members of the crew, including wireless operators in the service of a
wireless telegraphy Company. of al1 sea-going vessels, whether
publicly or privately owned, which are registered in a territory for
which the Coiivention is in force and are engaged in the transport
of cargo or passengers for the purpose of trade.

2. Xational laws or regulations shail determine when vessels are
to beregarded as sea-goingvesselsforthe purposeof this Convention."
IO. Conuentio~(zNo. jj) concerningSickness, Injury or LlealhofSeamen.
October, 24, 1936 a
"Article I. 1. This Convention applies to al1persons einployed on
board any vessel, otlier than a ship of war, registeced in a territory

for which this Convention is in force and ordinsrily engaged in
maritime navigation."
II. Conue~ttion(No.56) concerningSicknessInsuranceofSeamen,Octobcr
24, 1936
"Article I. I. Every person employed as niaster or member of the
crew or otherwise in the service of the ship, on board any vessel.

other than a ship of war. registered in a territory for which this
Convention is in force and engaged in maritime navigation or sea-
fishing shall be insured iinder a compulsory sickness insiirance
scheme."
12. Convention(No. 57) conceriziltgHonrs of Work on Board Shi$ alid
Manning, October 24, 1936~

Part. 1.-Scope and Definitions
"Article I. 1. This Convention applies to every seagoiny meclian-
ically-propelled vessel,wliether publicly or privately owiied,wliich -
(a) is registered in a tcrritoryfor which the Convention is inforce; ..."

13. International Conventionfor the Regulationof the Meshes (ifFiskil~g
Nets and theSize Limits of Fish, March 23, 1937
"Article 2. The vessels to which the present Conveiition applies
shall be the fishing vessels and boats, as defined in Annes V, regis-
tered or owned in the territories to which tlie Coiivention applies."

I.L.O.Conventions and Recommendations, 19r9-rg4g. p. 371.
2 U.1V.T.S. qo.p. 169.
8 U.N.T.S. 40. p. iS7.
I.L.O. Convention siid Recommendations. igig-rg+g ,. 357.
Hudson. Intrrrrational Legirlalion, 1Vil, p. 642. WRITTEIC STATEMENT OF THE GOVERNMENT OF LIBERIA 91.
14. Final Act of the International Fisheries Conference,1943 '

Chapter V.-Nationality, Registration and Identification of Fishing
Vessels
"Article 42. 1.The vessels of each of the Contracting Parties shall
be registered in accordance with the administrative regulations of
that Party."
15. Provisional Maritime ConsultativeCouncil, October 30, 1946 2
Article 5 provides:

"This Agreement shall remain open for acceptance in the archives
of the Government of the United Kingdom and shall enter into force
when twelve Governments, of which five shall Iiave a tolal tonnage
of not less than ~,ooo,ooogross tonnage of shipping, have accepted
it."
16. Convention(No. 68) concerningFood and Cateuingfor Crms on Board
Shi$, June 27, 1g4G

"Article I. I.Every Member of the IL0 ...is responsible for the
promotion of a proper standard of food supply and catering service
for the crews of its sea-going vessels; whether-publicly or privately
owned, which are engaged in the transport of cargo and passengers
for the purpose of trade and registered in a territory for which this
Convention is in force.
2. National Laws or regulations or, in the absence of siich laws
or regulations, collective agreements between employers and workers
shall determine the vessels or classes of vessels which are to be re-
garded as sea-going vessels for the purpose of this convention."
"Article 5. I. Each Member shall maintain in force laws or regu-
lations concerning food supply and certain arrangement designed ta
secure the health and well-beingof the crewsof the vesselsmentioned
in Article 1."
"Article 6. National laws or regulations shall provide for a system
of inspection by the competent authority ..."

"Article 15. (2) It shall come into force six months after the date
on which there have been registered ratifications by nine of the fol-
lowing countries: ...,including at least five countries each of which
has at least one million gross registered tons of Shipping ..."
17. Convention(No. 69) concerningCertifiafion of Ships' Cooks,June 27,
1946
"Article 8. (2) It shall come into force six months after the date
on which there have been registered ratifications by nine of the
following countries: ..., including at least five countries each of
which has at least one million gross registered tons of Shipping."

18. Convention(No. 73) concerning theMedical Examil~atiotzof Seafarers,
June 29. 1946

H.M.S.O., hliscellaneous Xo. 5(~943). Cmd. 6496.
2 TI NTC n n ro7~ "Article I. 1. This Convention applies to every seagoirig vessel,
~vhetherpiiblicly or privately owned, ..and isrcgistcred in a territory
for which this Convention is in force.
z. Sational laws or regulations shail determine when vessels are
Io he regarded as sea-going."
"Article II. z. 11shall come into force six montlis after the date
on which thcre hase been registered ratifications hy seven of the
followingcountries: ...including at least four countries each of which
has ai least one rnillion gross registered tons of Shippiiig."

19. Safely of Life nt Sea Convention,June IO. 1948 '
"Article II. The ships to which the prescnt Convention applies
are ships registered iii coiintries the Governrnents of wliich are
Coiitracting (;overnmcnts, and ships registered in territories to which
the Ixeseiit Con\.ention is extended under Article XIII."
20. Co~tuenlio~(z A70.gr) concerning Vacalio~~ Holidays with Pny for Sea-
farers(revised 1949). June 18, 1949 '

"Article 13. z. It shall come irito force six montlis after the date
on whicli there have been registered ratificatioiis by nirie of the
following countries ....including at least five countries each of which
has at least one million (r,ooo,ooo) gross registered tons of Shipping."
21. Coiivenlion(Mo. 93) corzcerrri~iW gages, Hozrrs O/ lVork on BorirdShi$
nitd Manning (revised rgqg), Jiiiie 18, 1949 '
"Article z. I. This Convention applies to every vessel whether
puhlicly or privately owned, which is-
(a) registered in a territory for which the Convention is in force."

"~rticle?6.?. It sliall first corneinto force six monthsafter the date
at which the followinc conditions have been fulfilled:
(a) The ratifications of nine of the following Illenibers have heen
registercd ...
(b) At least five of the klernbers whose ratifications have beeii regis-
tered have at the date of registration each not less than one
million (r,ooo,ooo) gross registered tons of Shipping."
22. I?tter~rntionalConuetrlionfor the U~tijicationof certain Rules relating
to Penal Jurisdictio~z in Matlers of Collision or other Incidents O/

Navigatio~t,May IO, 1952 '
"Article I. In the event of a collision or aiiy otlier incident of
navigation concerning a sca-going sliip and iiivol\~ingthe penal or
disciplinary responsibility of the master or of any other person in
the service of the ship, criminal or disciplinary proceedings may be
institiited only before the judicial or administrative authorities of
the State of which the sliip was flying the flag at the time of the
collision or other incident of navigatioii."
"Article z. In the case provided for in the preceding Article, no !
arrest or detention of the vessel shall be ordered, even as a measure

V.I..O.d Conventionasnd Hecommendutions, 19x9-1949, p.720. SOT.
I.L.O . onventions and Recommendations. 1919-,949. p.S23.
' United Kingdom Miscellaneous No. 13 (1953). Cmd. 8954 WRITTEP: STATELIEST OF THE ÇOVERWhIENT OP I.IHEKI:\ 93

of investigatiori, by any aotliorities other than thosc whose Hag the
ship was fl.ine."
23. International Co~zuention for the i'reuention of I'ollutio~zof the Seo by
Oil,May 12, 1954 1

"Article 'YI'. (1) The present Coiivention shall coinc iiito force
twelve months aftcr thc date on which not less than ten Gooern-
ments have become parties to the Converition, iiicliiding five Govern-
ments of countries each with not Icss than 500,ooo gross tons of
tanker tonnagc."

24. International Conue~ztio~ rzlatingto Stowaiuuys, 1957 '
"Article 2. (1) If on any voyage of a ship registered in or bcariiig
the Hag of a Contracting State a stowaway is found in a port or at
sea, the master of the ship may ..."
"Article 3. (4) Finally, when the stowaway caiiriot be returned as

provided iinder paragraph (1), (2) or (3) of tliis Article, the appro- .
priate authority may return hiin to the Contracting State whosc
Hag was flown by the sliip in which he was found."
25. International Conventionrelating to the Limitation of the Liribility of
Owiiersof Sea-going Ships, October IO, 19j7 a

"Article II. (1) This Coiivcntion shall come into force sis moriths
after the date of deposit of at least ten instruments of ratificatioii,
of whicli at least five by States that have each a tonnage eqiial or
stiperior to one million gross tons of toiiiiage."
26. Arge~tti~ieRepztblic-Hrazil. ï'reaty of Conrniercen~id i\'riuig«tioii,
January 23, 1g404

"Article 16. (1) For the purpose of this article vessels of eitlier
nation shall bc considered to be those registered aiid mannccl in,
and which operate according tothe laws, of the respective countries."
27. Belgirtm-United States. Treaty of Commerceund Navigation, Novem-
ber IO, 1845

"Article .Y(?. Vesselserovided witlrpassport. The Higti Contractiiig
Parties agree to consider and to treat as Belgian vessels. and as
vessels of the United States, al1those which, being provided by the
competent authority with a passport, sea lettcr, or any othcr
sufficicnt document, sliall be recognized conformably with esisting
latirs as national vessels in the country to which they respectively
belong."

28. Belgiztm-United States.ï'reatyofCommerceaiidh'auigatioiz, hIarc11S.
1575"
"Article IS. Thc High Contracting Parties agree to considcr aiid
to treat as Belgian vessels. and as vesscls of the United States, al1

' United Kingdom ï'reofy Sericr No56 (rg58). Cmnd. 595.
Report ofThe BritishMaritime Luw Association on The I>iplomolic Con/crencc
hcldin Brussels /mm Seplember 30th Io Octobcr rol1957,pp. 84 and 86.
Ibid.,p. 47.
' Diario OflicialDecernber 19. 1941: British& Foreign Stnte Papem. Vol. 144.
p. 209.
".S. Stat.at Large, \'ol. Sr789-1S45, p.606.
U.S.T.S. Xo. 28.94 \VRITTES STATENEST OF THE GOVERNhfEST OF LIBERIA

thosc which being provided by the competent authority with a
passport, sea letter, or any other sufficient document, shall be
recogiiized, conformably with existing laws, as national vessels in
the country to which they respectively belong."
29. China-United States.Treaty of Friendship, Comn~erceand Naviga-
tion,Xovember 4, 1946 '

"Article SSI. 2. Vessels under the flag of either High Contracting
Party, aiid carrying the papers required by its national law in proof
of nationality, shall be deemed to be vessels of that High Contracting
I'arty both within the ports, places and waters of the other High
Contracting Party and on the high seas."
30. IJolar~d-Czechoslouakin. Communications Agreement, July 4, 1947 '

This provides in Article 32, that the nationality of a vessel is to
be determined "in accordance mith the laws of the State to which
the vessel belongs."
31. Estoitia-United States. Treaty of FriendshiP, Comnzerceand Consular
Righls, December 23, 192 j8

"Article X. Merchant vessels and other privately owned vessels
iinder the flag of either of the Higli Contracting Parties, and carrying
tlie papcrs required by its national laws in proof of nationality shall,
both within the territorial watersof the other High Contracting Party
and on the high seas, be deemed to be the vessels of the Party whose
flag is flown."

32. Fiizla~~d-United States. Treaty of Frierzdship, Commerce and Con-
sular Rights, Febniary 13, 1934 *
"Article XV. Proof of Nationality. For the purposes of tbis treaty
merchant vessels and other privately owned vessels under the flag
of cither of the High Contracting Parties and carrying the papers
required by its national laws in proof of nationality shall be deemed
to he the vessels of the Party whose flag is flowri hoth within the

territorial waters of the other High Contracting Party and on the
high seas."
33. Fitila~~d-United States. DoubleTaxation Convention, Marcli 3, 1952
"Article TJ.Shipping Profits. (1)Income which ari enterprise of one
of the contracting States derives from the operation of ships or
aircraft registered in that State shall be exempt from taxation in the
other contracting State.

34. Frcrnce-United States. Shipping and Aviation Taxation, July 25,
1939

' U.N.T.S.,25, p. 69; U.S.T.I.A.S.No. 1871.
a U.hT.T.S..85.p.262.
L.N.T.S., 50, p. 13; U.S.T.S. No. 736.
L.N.T.S.. 15. p. 45; U.S.T.S. No. 868.
U.N.T.S.. 177,p. 163; U.S.T.I.A.S.No. 2596.
Seealso: fa) Canada-United States
Doul>le Taxationon Incarne. Afayq,1942, U.S.T.SXo. g83: Art. V.
(b) Belgium-United States
Double Taxation on Income, U.S.T.I.A.S. Nu. 2833; Art. VI1(1).
U.S.T.S. So. 988. WRITTEK STATEMENT OF THE GOVER'JMEST OF LIBERIA 95

"Article 6. Iiicome derived by navigation enterprises of one of the
contracting States from the operation of ships documented under
the laws of that State shall continue to benefit in the other State by
the reciprocal tax exemptions accorded by the exchange of notes of
June II and Jnly 8, 1927, hetiveen the United States of America and
France."
3j. Germnny-Italy, Treaty of Friendship, Commerce a?zdNavigation,

1959
"Article 24. Vessels under the flag of one Coiitracting State whicli
carry with them the documents prescribed under its municipal law
as proper evidence of natioiiality shall be considered vessels of that
Contracting State."
36. Germany-United States. Treaty of Friendshi~, Commerceand Con-

sular Rifhts, Decemher 8, 1qz3 '
"Article X. hlcrchant veisels and other privately owned vessels
under the flag of either of the High Contracting Parties, and carrying
the papers required by its national laws in proof of nationality
shall, both ivithin the territorial waters of the other High Contracting
Party and on the high seas, be deemed to be the vessels of the Party
whose flag is flown."

37. Germany(Federal Xe$ublic of)-United States.Treaty of Friendship,
Commerceand Navigation, October zg, rgj4
"Article XIX. I. Vessels under the flag of either Party, and car-
rying the papers required by its law in proof of nationality, shall be
deemed to be vessels of that Party.
z. The term 'Vessels', as used in the present Treaty, means ail
types of vessels, wlicther pnvately owned or operated, or publicly
owned or operated; but this term does not include vessels of war."

38. G~eec~-Iua/z.Corzve/zliu? O/ Estublis/cn$ent, ommerc~n .ad Navigation,
January 9, 1931
"Article 16. Les navires marchands grecs ...seront traités en
Perse, et les navires marchands persans ...en Grèce, de la même
façon que les navires marchands nationaux, et en aucun cas plus

défavorablement que les navires marchands d'un antre pays quel-
conque."
39. Greece-Italy. Treaty of Frieizdship, Commerce and Navigation,
Xovembcr j, 1948 *
"Article 26. La nationalité des navires .sera constatée d'après les

lois de 1'Etat auauel le navire en ouestioii aonartient. au moven
des titres et patentes se trouvant à bord, déli;;és par ies autontés
compétentes."
40. Greece-Lebanon. Treaty regardingConszclarRepresentation, Naviga-
tion, etc., October 6, 1948'

' L.N.T.S.,52, p. '33; U.S.T.S. No.725.
British&AForeign State Paperç.rgqpIII, \'ol. 155, p. 613.
British& Foreign State Papers,,948-III. Vol. 152, p423.
U.N.T.S., 87. p. 351; Brit&sForeign StatePapers,1gq8-III.Vol. i52.p.441.96 WRITTEK STATEI\IENT OF THE GOVERS3IENT OF I.IBERI.4

"Article II. La natioiiülité des navires de chacune des Hautes
l'articscontractantes, déterminéeselon les lois et règlements qui y
soiit en vigueur, sera reconnue par l'autre Partie pour 1application
des dispositions du présent Traité."
41. Greecc-United States, Treaty of Friendship, Commerceand Naviga-

tion,August 3,1951 l
"Article XXI. 2. Vessels under the flag of either Party, and car-
rying the papers required hy its law in proof of nationality, shall be
deemed to he vessels of that Party both on the high seas and within
the ports, places and waters of the otlier party."
"-Article XXIV. S. The term 'vessels' as usecl in the present

Treaty, means al1 types of vessels, whethcr privately owned or
operated, or puhlicly owned or operated; but this term does not,
except with reference to paragraph 2of Article XXI and paragraph I
of Article SXTT [the latter paragraph relates to vessels in distress],
iiiclude fishing vessels or vessels of war."
42. Greece-United States.DoubleTaxation on I~zcome ,iebruary zo, 1950~

"Article V. (1) Income which an enterprise of one of the Contract-
ing States derives from the operation of ships or aircraft rcgistered
or dociimented in that State shall be exempt from tax by the other
Contracting State. Income derived hy çuch an eiiterprise from the
operation of sliips or aircraft not so registercd or documented shall
be subject to the provisioiis of Article III."

43. Ifondzrras-Uisited States. Treafy of Friendship, Commerce andCon-
sular Right, Decemher 7, 1927 s
Article X. The same wording as No. 31 ahove.
44. Iran-United States.Treaty oj Amity, EcoizomicRelatioizsand Con-

sulnr Rights, Augiist Ij, ~gj j'
ArticleX, paragraphs z and 6. The same mording as Sn. 41 above.
45. Ireland-United States. ï'renty of Friendship, Commerceand Nnviga-
tioic,Janiiary 21, 1950

Article XIJIII, Aara-.ph n. The same wordiiig as Xo. 41 ahove.
46. Italy-Lebaizon. Trcnty of Friendship, Commerce al~d Navigntioïz,
February 15, 1949

"Article 26. La nationalité des navires sera constatée selon,les lois
de la Partie à laquelle appartient le navire, au nioyen des titres et
paterites se trouvant à bord, délivréspar les autorités compétentes."
"Article 27. Le traitement des navires nationaux rie s'étend pas:

a) à l'application de lois spécialespour la maririe niarchande natio-
nale, en ce qui concerne !es cncoiiragements soit à I'iiidustrie des
constructions iiavales soit à la navigation au moyen des primes
ou d'autres facilités spéciales;
b) au cabotage, qui est réservéaux navires nationaux."

U.S.T.I.A.S. 3oj7.
P U.N.T.S.. 196,p. 269; U.S.T.I.A.S.2902.
a L.N.T.S., 87,p. 421;U.S.T.S. Ko.764.
4 U.S.T.I.A.S. 3853.
U.S.T.I.A.S. 2155.
a British& Foreign State Papers.1949-111, Vol. 155.p. 725. WRITTEN STATEMENT OF THE GOVERNMENT OF LIBERIA
97
47. Italy-United States.Treaty ofFriendshifl,Commerceand Navigation,
February 2, 1948 l
"Article XIX. z. Vessels under the flag of either High Contracting
Party, and carrying the papers required by its national law in proof
of nationality, shall be deemed to be vessels of that High Contracting

Party both within the ports, places and waters of the other Higli
Contracting Party and on the High Seas. As used in the Treaty,
'vessels' shall be construed to include al1 vessels of either High
Contracting Party whether privately owned or operated, or publicly
owned or operated."
48. Japan-United States. Treatyof Commerceand Navigation, February
21, 1911
"Article X. Nationality of Vessels. Merchant vessels navigating
under the flag of the United States or that of Japan and carrying the
papers required by their national laws to prove their nationality
shall in Japan and in thc United States be deemed to be vessels of
the United States or of Japan respectively."
49. Jaflan-United States. Treaty of Commerceand Navigation, Augud

29. 1953 '
"Article XIX. z. Vessels under the flag of either Party, and car-
rying the papers required by its law in proof of nationality, shall be
deemed to be vessels of that Party both on the high seas and within
the ports, places and waters of the other Party."
7. The tcrm 'vessels', as nsed herein, means al1 types of vessels,
whether privately ownedor operatcd, or publicly owned or operated;"

50.Korea-U%ited States. Treaty of Friendship, Commerceand Nauiga-
tion, November 28, 1956 '
Ayticle XIX, paragraphs z and 6. The same wording as No. qr
above.

51. Liberia-United States. Treaty ofFriendshifl, Commerceand Naviga-
tion, August 8, 1938
"Article XV. Merchant vessels and other privately owned vessels
under the flag of either of the High Contracting Parties, and carrying
the papers required by its national laws in yroof of nationality
shall, both withiii the territorial waters of the other High Contracting
Party and on the high seas, be deemed to be the vessels of the Party
whose flag is flown."

52. Liberia-Germany, Treaty of Amzty and Commerce,6 January, 1931
"Article X. Liberian vessels and their cargoes in Germany and
German vessels and their cargoes in Liberia shall be treated in the
same way as native vessels and their cargoes."
"Article XI. ...In like manner, the protection of the Government
of Germany shall be granted to al1Liberian ships, their officers and
crews."

U.N.T.S., 79,p. 171; U.S.T.I.A.S.1965
U.S.T.S. NO. 558.
U.S.T.I.A.S.2863.
U.S.T.I.A.S.3947.
L.N.T.S., zor,p. 163; U.S.T.S. No. 956.98 WRITTEX STATISYEKT OF THE GOVERSIIEST OF LIBERIA

j3. NetlierlnrLds-U~iited States. Treaty of Frie~zdsltip, Coniiiierce and
Navigatio~i,March 27, 1956 '
"Article XXI. z.Vessels under the flag of either Party. aiid car-
rying the papers required by its laivin proof of iiationality, shall be
deemed to be vessels of that Party both on the high seas aiid within
the ports. places and waters of the other Party."

"Article XIX. 6. The term 'vessels', as used herein, meaiis al1
types of vessels, whetlier privately owned or operated, or piiblicly
owned or operated, except vessels of war. This terni does not, except
with reference to paragraphs Iand 5 [paragraph j relates to vessels.
in distress] of the present Article and Article XX [relating to
reconstitutiiig crews], include fishing vessels."
54. Netherlands-United States. DozrbleTaxation on Income, April zg,
1948 a
"Atticle VI. (1) income which an enterprise of one of coiitracting
States derives from the operation of ships or aircraft registered in
that State shall be taxable only in the State in which such ships or
aircraftarc reaistered."
"
55. Nicaragua-United States. Treaty of Commerce and h'avigatio~i,
January 21, 1gj6 a
Article .YIS, paragraphs 2 and 6. The same uording as No. 41
above.
j6. Norwuy-United Stules. Trenty of Friendship, Commerceand Consular
Rights, June j, 1928

Article X. Tlie same wordiiig as 80. 31 abore.
j7. Parag2ray-ti?iiled States. fieaty of Friendship, Coi~iinerce iind h'avi-
gatioit, February 4, 16.59~
"Arlicle VII. Ailvessels which, according tothe lawsof the United
States of America, are to be deemed vessels of the United States of
America, and al1 vessels whicli, according to the laws of Paraguay,
are to be deerned Paragiiayan vessels, shall for the purposes of this
treaty, be deemed vessels of the United States of America and Para-

guayan vessels, respecti\.ely."
58. Spain-United Stales. Treaty of Commerce andNavigatioib, July 3,
1902
"Article SI. Al1vesselssailing under the flagof the United States,
and furnished with such papers as their lawsrequire, shallberegarded
in Spain as United States vessels and reciprocally, al1vessels sailing
under the flag of Spain and furnished with the papers which the
laws of Spain reqnire, shall be regarded in the United States as
Spanish vessels."

jg. Sraede~s-United States. Shipping and Aviation Inconte, March 23,
1939
U.S.T.I.A.S.,3942.
U.N.T.S., 132. p. 167.
a U.S T.I.A.S.4024.
' U.S.T.S.So. 852.
U.S.T.S.So. 272.
' U.S.T.S.So. 422.
' U.S.T.S.So. 958. WRlTTEN STATEMENT OF THE GOVERN.\IENT OF LIBERIA 99

"Article IV. Income which an enternrise o-~one of the Contractine
staks derives from the operation of shi'psor aircraft registered inth;:
State istaxable only in the State in which registered. Income denved
by such an enterprise from the operation of ships or aircraft not so
registered shall be subject to the provisions of Article 2."
.
60. United Kingdom-Denmnrk. Convention regulating the Fisheries
outside Territorial Waters in the Oceansurrounding the Faroe Islands
and Iceland, June 24, 1901
"Article 5. Thc fishing boats of the High Contracting Parties shall
be registered in accordance with the administrative regulations in

force in their respective countries."
61. United ICingdom-Iran. Treaty of Commerce, Establishment and
Navigation, hlarch II, 1959 *

"Article 2, paragrapli 3. The term 'vessel' means, in relation to
a High Contracting Party, al1 ships registered at a port in any
territory of that High Contracting Party to which the present treaty
applies."
62. UnitedKingdom-UnitedStates. DoubleTaxation onIncome, April 16,
1945, and June 6, 1946 a

"Article V. (1)Notwithstanding the provisions of Articles III and
IV of the present Conveiition, profits which an individual (other
than a citizen of the United States) resident in the United Kingdom
or a United Kingdom corporation derives from operating ships
documented or aircraft registered under the laws of the United
Kingdom, shall be exempt from United States tax.

(2) Xotwithstanding the provisions of Articles III and IV of the
present Convention, profits which a citizen of the United States not
rcsident in the United Kingdom or a United States corporation
derives from operating ships documented or aircraft registered under
the laws of the United States shall be exempt from United Kingdom
tax."

63. U.S.S.R.-Ira+$. TveatyofCommerceand Navigation, March 25, 1940'
"Article 12. (1) The vessels plying in the Caspian under the flag
of either of the High Contracting Parties shall be treated in al1ways
in the same manner as the national vessels when in the ports of the

other High Contracting Party."
64. U.S.S.R.-Yzrgoslavia. Treaty of Commerce andNavigation, Aky II,
'940

"Article j. (b) Thc nationality of vessels shall be miitually recog-
nized in accordance with the laws and regulations of each of the
contracting parties supported by documents and certificates (Licen-
ses) carried by the vessel and issued by the competent authorities
of the respective country."

British& Foreign State Papers,Vol. g4, p.29.
United Kingdom, Iran No. 1 (1959). Cmnd. 698.
3 U.N.T.S., 6, p. 189.
4 British& Foreign State Papers, 1yq~II. Vol. 144, p. 419.
6 British& Foreign State Papers, 1yq~II. Vol. 144. p. 531.100 JVRITTES STATE.\IEST OF THE GOYERSlIEST OF LIBERIA

THE PREI'AI'<A'I'OKY\\'OKK FOR THE I.M.C.O. CONVEXTION

The trauarrïpvéparatoires for the I.M.C.O. Convention arc to be found
in the docurneiit;itioii of two conferences: the second session of the United
Maritime Consultative Council (hereiiiafter called "the U.M.C.C.")
held in Washiiigton, October 24-30, 1946, aiid the Uiiited Nations Mari-
time Confereiice of 1946.

1. The United Muritirne ColcsultativeCozrlicil
The first draft of the Convention was prepared by a Committee \vhich

met in Londoii iii July, 1946. This draft appears as document UXCC. 212
in the records of the 1946 Session of the U.XI.C.C.The provision which
subsequeiitly became Article 26 (a) of the Conventioii was Section 2
of Article VII. The terms of this section were as follows:
"Section 2. The Maritime Safetv Committee shall coiisist of 12
Nemher Governments selected by-the Assembly from the Govern-
meiits of those nations having an important interest in maritime

safety aiid owniiig siibstantial amounts of inercliant shipping, of
which no less than nine shall be the largcstship-owning nations aiid
the remaindcr shall be selected so as to ensure representation for the
major geographical areas. The Naritiine Safety Committee shall
have power to adjust the nuinber of its members with the approval
of the Coiiiicil. No Government shall have more than one vote on
the Cornmittee but delegations niay include or be accompanied by
aclvisors. hlembership of the Coinmittee shall be for a period of
4 years. Governments shall be eligihle for re-election.'"

This draft \\.aaccompanied by a Report by the Committee \v-hichhad
been respoiisihle for its preparation. The only comment on Article VI1
(2) of the clraft was contaiiied in paragraph rz of the Iicport:

"rz. The Maritime Safety Committee, as proposed, will include
the largcst shipowning nations. This is of great importance to its
successful operatioii. Provision is also made for rcprcseiitatiori of
other shipowniiig iiatioiis from al1 parts of the world thus giving
recognition to the wrld-wide interest iii the pioblems involved.
III this rcspcct soine of the members of the Coinmittee felt that
representation on the>laritimeSafety Conimittee should be provided
for nations xvith special interests in the manriiiig of ships. The
Committee decided iiot to inake any specific provision of this kind,
biitit has been considered appropriate to leave the Maritime Safety

Committee with power to adjust the iiumber of its members with
the approval of the Council. 2"
It mav, however. be ~ertinent to refer to the terms in which the Com-
riiittee ioiiimciirc<loii tiic ~nrtq>iii;:\rtiçlcVI. Scctiiiiir,%iftlii. draft,

tlini the Couiicil of the Organizarioii slioiild cniiiprise <:ightii;itinitli \VHITïES ST.4TEIIENT OF THE GO\'EKS>IEST OF LIL(EK1A IO1

the lareest interest in the ~rovision of international shi.&ine-services
and fo; maritimenations w'iththe largest interest in internationaltrade.
The Cornmittee said, in paragraph 7 of its Report:

"7. 111recommending that twelve of the members of the Coiincil
should comprise eiaht nations with the larrest interest in the uro-
visioii ni iiiicriintioriril slii~ipiiigser\.icci aifuiir riinriiiiiii: ii;itioiis

with the I:irgesr intqrt .,t iiiiiitcrii.iri~iii;iltr;i.ce:hitr >iutinrznded
Ikitt Ihe sd<.crionshorild Lc>na$? i)>n rr;.id. srirrt~t~c~lr,luii\. u.liiiii
any case would be difficult to determiÏie. \Ve have, however, recog-
nized that the nations mith the largest interests in shipping and
international trade rnust of iiecessity play a leading part in the
work of the Organization, while at the same time provisioii is made
for the four remaining mernbers of the Coiincil to be chosen at the
discretioii of the Assemblv. havina rerard to the desirabilitv of

adequate geographical rep;esentati&i, thus reflecting in the Coincil
the represeiitative and world-wide cliariicter of the Organization. '"

No such comment \vas made with resDect to Article VI1 lwhich
~til~scquctiil~I,ccanic TIMl.~rvxci11 ~Ari~cI 2>(~,., 'l'11c.ij,il~-;rt.f$,rt.c,cr-
tatrily r<,i>nifor clicvit:\i.,iii contr:~siiiig rhi, rt:rnis of rlii. ~~oriiII)C~II
.ArticleVI (1)aiid z\rt~cle Vil 121.[kit ~I~II~~I ICeII Ir:ift~111t:~1~~11si~lerer1

the deterAihation of size neidGd for the ftrmer article should not be
made on "a rigid, statistical basis", the calculation of size in connection
\\rith Article VI1 (2) vas a simple matter ofreference to statistical tables.
If this interpretation of ivhat may have been in the minds of the
draftsmen is correct, there can be no doubt that registration \\.asintended
to be the criterion of size, for there is iio other criterion in respect of
which the necessary statistical information can readily be ascertained.
The secoiid draft of the I.M.C.O. Coiivention was submitted by the

United States for consideration at an early stage of the 1946 Conference a.
Article VI1 of this draft, entitled "Maritime Safety Committee",
provided in Sectioii I, as follows:

"Seclimz r. The Maritime Safety Cornmittee sball coiisist of
12 3Iember Governments selected bv the Assemblv frorn the aovern-
ments of those nations having ai; important inierest in m>ritime
safety ancl having substantial amounts of merchant shipping, of
which iiot less than nine shall be the largest shipoii-iiing nations,
and tlie remainder shall be select~d~ ~ ~s to ensure re~risenta-
tion for the major geographic areas. Thc Committee shali meet at
least once a vear. Membershiu of the Committee shall be for a

period of years. 3"

The third draft of the Convention was prcpared by a Drafting Com-
mittee appointcd on Octoher 26, 1946~. It \vas based on the United
States draft mentioned above.
Two versions of Article VII, Section 1, were put fonvard: ihey pro-
vided as follows:

1 UUCC 212. p. 10.Italicssupplied.
See Ui\lCC 2/21.
Ibid..p. I1.
See IJhICC 2/29.102 WRITTEX STATEMENT OF THE GOVERNXENT OF LIBERIA

(i) "Section I. The Maritime Safety Committee shall consist of

12 Member Governments selected bythe Assembly from the govern-
ments of those nations having an important interest in maritime
safety and having substantial amounts of merchant shipping, of
which not less than nine shail be the largest shipowning nations
and the remainder shall be selected so as to ensure representation
for the major geographic areas. The Committee shall meet at least
once a year. Membership of the Committee shall be for a period of

years."
(ii) "Alternative draft of Article VII, Section I (submitted by
Drafting Committee after discussion of amendment proposed by
Tndian~ ~---.~---- :
The ~aritimé ~afety Committee shall consist of 12 Member Gov-
ernments selected bv the Assemblv from the aovernments of those

nations having an important intetest in mant&ne safety, of which
not less than seven shall be the largest shipowning nations, and the
remainder shall be selected so as to ensurë adeauite re~resentation
of other nations with important interests in maÎitime Safety and of
maior peomaphical areas. Membership of the Committee shall be
foFa piriGd Ôf years '".

The final draft agreed by the Second Sessionof the U.M.C.C.for recom-

mendation ta the Member Governments and through them to the Econo-
mic and Social Council of the United Nations was dated October 30,
1946 %.
Article VII, Section 1,provided as follows:

"Section I. The Maritime Safety Committee shall consist of four-
teen Member Governments selected by the Assembly from the
governments of those nations having an important interest inmari-
time 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. Membership
of the Committee shall be for a period of years. Governments
shall be eligible for re-election. 3"

The discussioii of the drafts was commenced at the secoiid meeting
of the Washington Conference 5 and continued at the third fourth',
fifth ',sixth eighth and ninth '@meetings.

UMCC 2/29. p. 5. October 27. 1946.
UMCC 2/29 (Final document), October 30, 1946. This, it appears, was a version
collated by the Secretanat from UMCC 2/21, UMCC 2/29 and UMCC 2/29 (First
Revision). See Minutes of Ninth Meeting of U.M.C.C., paragraph 2. UMCC 2/46,
P. 4.
Vbid., pp. 5-6.
' October 24,1946. See UMCC 2/20,pp. 5 ei sep.
October 25, 1946.See UMCC 2\24, pp. 4 etseq.
8 October 25, 1946. See UMCC 2/20,pp. 4 etSLT.
' October 26, 1946. See UMCC 2/30, p. q.
8 October 28, 1946. See UMCC 2/41. p. 4.
October 29,1946. See UMCC 2/43, PP. 9
'OOctober 30, 1946. See UMCC 2/46, p. 4. \VRITTEK ST.ATEYEST OF THE GOVERSAIENT OF LIBERIA 103
Specific reference was made to Article VI1 at the fifth ',sixth and
eighth meetings only. No reference was made to the meaning of the

expression "largest ship-owiiiiig nations" and the discussion was almost
exclusivcly devoted to a consideration of the size of the Committee and
of the distribution of its membership as between ship-owning and other
nations.
II. The United Xalions i\larilime Conference

This Conference met at Geneva from February 19 to hfarch 6, 1948.
Thedraft before it \!.asthe one nrenared bvthe United hfaritime Consul-
tative Council in 1946 as des&ibédabove, and as commented upon by
Governments6. No comment was made bv anv Government upon the
exnression "the lareest shin-owninenation? or: indeed. unon aiv other
mâtter which is relevant in'tbe preient connection. Nor ho'the ~uhmary
Records8 of the Conference reveal anv consideration whatsoever of
the expression "the eight largest ship-cwning nations".
A Specid Working Party on the Maritime Safety Coinmittee was set
up on February 27,1948 '.No record of the deliberations of the Working
Party appears to beavailable. Thepresent form ofArticle 28 (1)isapprox-
imately achieved in a Proposed Text of Article VI1 of the Draft Conven-
tion submitted by the Maritime Safety Working Party The Rapporteur

of the Working Party made no relevant comment when he referred to
the draft and discussions of the Working Party D. The section was
adopted on March 1, 1948."subject to drafting changes 'O".
It was at some stage after this and prior to March 5, 1948, that the
word "selectcd" in the original draft was replaced bythe word "elected".

UMCC 2/30, p. 13.
a UMCC 2/41,pp. 17-2'.
UMCC 2/43. p. 11.
' EICONF. qjr.
EICONF. 412.
* EICONF. 41SR Revised.
Ibid., p69.
8 EICOSF. 4/33.
EICONF. 41SR. Revised,
'OIbid.. p78.106 \\'RITTES SWTEAIEST OF THE GOYERS>lEST OF LIBERIA

extensive siirveys. The Load Line Certificatc is valid for a term not
excceding five years. Renewal of a Liberian Load Line Certificate by
the issuance of a new Certificate may be efiected only after a survey no
less coml>letethan the initial survey.
Inasmucli as full responsibility for Certificates issued under the
Convention rests with the Govemment oii whose belialf such Certificates
arc issued. the Rel>ublic of Liberia also requires aniiiial load line in-
spections to ensure that the hull and siiperstriictures have not been
altered aiid that the fittings and applianccs spccified in the Convention
are maintained as required throughout the term of the Load Line Certi-
ficate. Copies of Liberian Load Line Certificates and Aiinual Load Line
Inspection Reports are filed with the offices of the Commissioner and
the Deputv Commissioners. The Deputy Commissioner's office reviens
such~ertif;catcsand Keportsandkeeps a record of the dates of expiration
of the Load Line Certificates in order to keep control over the o\\nersr

compliance with the requirements concerning siirveys to be carried out
and Certificates to be issued or renewed.
(2) Liberian Safety EqicipmeictCertificate.This Certificate is required
by the International Convention for the Safety of Life at Sea, 1948. The
Certificateis issued hy the proper Classificatioii Society whcn the neces-
sary surveys set forth in the Convention, with respect to structural
efficieiicy,life-saving equipment and other matters, have been completed.

The Certificate is issued in the form and maiiner prescribed by the Con-
vention and is valid for a term not exceeding two years. lienewal of a
Liberia11 Safety Eqiiipment Certificatc may Bc effected only after a
survey no less completc than the initial survey. Where the Convention
requires types of approved equipment, generally acccptcd international
standards must be satisfied. Exemptions froin aiiy requirenients of the
Convention witli respect to this particiilar Certificate or any other
Certificates mentioned herein may not be granted by the Societies
unless specifically approved by the Commissioner or a Deputy Com-
missioner. Any such exemptions are kept at a minimiim and are granted
only where warranted within the scope and intent of the Conventioii.
Copies of the Liberian Safety Equipment Certificates are filed with the
office of the Commissioner and the Deputy Commissioners, which
reviews such Ccrtificates and keeps a record of the dates of expiration
to sec al1 reciuirements arc constantly inet. This Certificate is also
checked again& the otlier registration documents to sce that there is no

variation between them. For examj>le, if the Certificate shows life-
saving equipmerit for a lesser numbei of personnel than indicated in the
application for registration, immediatc steps are taken to ascertain the
correct facts.
(3) Liberian Safety Radiotele,ornphy or -telephony Certificale. This
Certificateis also issued by the proper Classification Society in accord-
ance with the riiles established by the International Convention for the
Safety of Life at Sca, 1948. It is issued in the form and manner pre-
scrihed bythe Convention and valid for a term not exceeding one year.

It is issued only after an extensivesurvey of the radio, telegraphy and/or
telephony equipnient on board the vessel. Kenewal of the Liberian
Safety Radiotelegraphy or -telephon), Certificates may be effected only
after a survey rio less coriiplete than the initial survey. This Certificate,
and al1 the other Certificates referred to lierein,:in:reviened by the108 \\'RITTES ST.ATE>IEYi 'OFTHE GOI'ERS>IISST OF LIBERIA

with the requirerncnts set forth therein, to issue for aiid on behalf of the
Republic of Liberia the necessary Liberian Certificates. The use of these
Classification Socicties has enabled the Republic of Liberia to have
available for its immediate use worldwide organizations of technical
experts wliose kriowledge, ability and intcgrity are beyond reproach.
This is in clcar contrast with the position in a niimber of the so-called
traditional maritime nations, where the departmïrits or branches of
governmeiit conccriicd with siich inspections and siirveys are restricted
to the territoricil lirnits of that particular coiintryits possessions.

(C) AddilionulSlnildards
In many cases, Liberiaii Flag vessels arc required to ineet standards
above and beyond those called for by these International Conventions.
For example the Intematioiial Load Linc Conventioii provides for the
issuance of a I.oad Line Certificate valid for fi\^ years aiid, further, cas
for "periodic inspections". Although some signatories to the Convention
have interpreted "periodic inspections" as rcferriiig to periods far in

excess of one yecir, al1Liberian Flag rcssels miist have such iiispections
coiidiicted on an annual basis. Another example is liegulation 51 of the
International Convention for the Safety of Lifï at sea, 1946, which
requires an alternate rneans of firefighting equipment for new vessels.
Liberia niakes tliis a requirement not orily for iiew vesscls, but also for
existing vcssels. \Wh respect to radio, although the International Con-
vention for the Safety of Life at Sea, 1948, permits ;rny Authority, in
respect of vessels over 1600 net tons biit less thaii 5joo gross tons, to
allow less tlian ciglit hours of listening timc hy operators, the Republic
of Liberia al\\-ays requires that al1 suc11vesscls under its Flag must
at al1times provide at least eight hours of listening time by an operator.

(D) I'rirtheConlrols
(1)Ship RadioSlnlionLicense.

Aiiother docuineiit to be submitted for registrrrtion is the Application
for Ship liadio Statioii License. This license application is carefully
scrutiiiked ancl the equiprnent and items appearingthereoii are thorough-
ly checkcd against the list of modern aiid up-to-date equipment main-
tainedoii file iii the Office of the Deputy Commissioiier in New York.
\Vhere approlirirrte, the items on the applicatioii arc also checked against
the date asshowii oii the Liberiaii Safety Kadiotclegraphy Certificate.
The Ship Radio Statioii License is valid for three years and, iipon expi-
ration. a iicw licerise is issued onlv iioon the subinission of a neur aupli-
cation: The purpose of requiring :ne& application is to provide a syS<em
whereby a check is maintained so as to see tliat the radio equipment is
being maintained properly. . -
\\'hen the application for registratioii has bceii thoroughly checked
and approved, the vesse1is assigned an Officia1Xumber and Radio Call

Letters. These Hadio Call Letters are in the first instance allocated to
the varioiis countries by the International Telecominunication Union
located in Geneva. Ulocks of letters are assigned and reserved for the
various couiitries. Originally, Liberia had becn irssigned the ELAA
through ELZZ and 5LAA through 5LZZ hlocks. Uecause of the large
registration under Liberian Flag, these blocks have heen almost ex- \\'RITTEN STi\TE>IEST OF THE GOVERNhIBST OF LIBERIA IO9

hausted and, at the request of Liberia, the l'SU h.îsissued 5MAA through
=jMZZ.
(2) Licemes and Examinatio+zs.

Liberia's comprehensive system of liceiising deck. engineering and
radio officers has beeii acclaimed throughout theshippingindustry asone
of the finest. Examinations may be taken at aiiy one of the numerous
examination centres conveniently located throughout the world. Also,
Radar Ol~server Certificates are issuecl to qiialified masters and deck
officcrs holding Liberian Officers' Licenses of Competence upon success-
ful complction of a comprehensive writtcn examination. Examinations
for the certification of efficient lifeboatmen havc beeii provided. All form
a part ofLiberia's determinedprogramme to enforce the highest standards
of safety and competency aboard ships flying the Liberian Flag. In an
article on September 28, 1958, the "New York Times", commenting on

the Liberian licensing system, reported, "Iiidependeiit operators and
marine insiirance undeniders agreed last week that the tests equal the
toughest and best controlled examinatioiisgiveii by any of the traditional
maritime nations".
(a) Licensesof Competence :

Section zgo, Chapter IO, of the Liberian Maritime Law requires al1
officers on board Liberian Flag vessels to have Liberian Licenses of
Competeiice to fil1the respective positioiis in \\.hich they are serving.
This is a rcquirement which mnst be inet, and neither the Commissioner
iior a Deputy Commissioner will issue any \\.aiver in connection there-
with. Firm control over the issuance of officers' licenses is established
and maintained bv permitting such liceiises to he issued only by the

upoii the successful completioii of a comprehensive written examination.

(i) Licertsewitlwut examinatioil
Wheii issued ori the basis of a license of ariother recogiiized maritime
nation. such nation itself must have reouired for the issuance of its own
IICÏIISLi'lic jl:tssinguf :L ~on~l)it~l~~~itii\\rivttc.c.s:iiiiiii:iticuul>lt~tl
!rith suhst;iiiti:il riicdic.nl. pli;icnrrit.r;il anil (~r.istii;il ie;i c,.\[icric.iiii.

rci~~iir~:rnu~ts'f.lit: :ilil>Iic:iiitfor rhc I.ilirrinii Itic.nse r:i<:<iriil>n.-
Ii~iiji\.:~~i}~I~cati II rn rci~iiir~~flurin together \rit:trliuroiigh inedic:il
rellorr r,ii [lie it:iriuiicrynort.i:ii~iiizi.il~~liysictwi,.Ii:tfcrs uf rccotn-
méndatioii. one from a-comvanv who had em~loved him in the oast and
one from a senior officer unde;mhom he had s<rved aboard thé vessel,
three photographs of himself, two photostats of his non-Liberian license
and a nominal fee. The non-Liberian license iniist be still valid and out-
standing and, in addition, the applicant miist prove that he has been to
sea iii that capacity witliin the past five years. The application, together
with the accompanying documents and papers, is carefiilly scrutinized
and investigated and, if found to meet the iiccessary reqoirements, the
proper Liberiaii License of Competence is issued. This liccnse will he in
the same grade only as the non-Liberian licciisc çubinitted. If the non-

Liberiaii license had noted on it any restrictions, such as limitations as
tn tonnage. horsepower or trading area, the same restrictions \vil1 be
stated in the Liberian license.II0 IVRITTES STATENEST OF THE GOVERNhlENT OF LIBERIA

(ii) License by examination
Where the applicant is seeking a Liberian license on the basis of the
comprehensive Liberian ufritten examination, he must first satisfy
requirements with respect to experience, medical, physical and moral
standards. The Liberian system of examinations was devised as the
result of many meetings and discussions with a committee of shipowners.

operators, officers and other parties experienced in rnaritime matters.
These meetings were called by the Depiity Commissioner in New York
expressly for this purpose, and the examinations yhich were finally
set up are most comprehensive, covering every subject that the officer
should and must know, be he serving in the deck, eiigine or radio depart-
ment. With respect to deck officers, the subjects covered include:
Navigation Rules and Regulations
International Rules of the Road Firefighting
Cargo Handling and Stowage Lifesaving
Instruments and Accessories Radar Navigation

Seamanship Signalling
Chart Navigation Star Identification
Sea Terms and Definitions Aids to Navigation
Ocean winds, weather 8rcurrents
In connection with engine officers, the subjects covered include:

Marine Boilers Diesel Engines
Turbines Engineering
Electricity hfathematics
Refrigeration Rules and Regulations
Firefighting

IlTith respect to radio operators, the subjects covered include:
International Regulations Radio Tubes
Taxation of Telegrams Transmitting and
"Q" Code Receiving Telegra-
Frequency Allocations phy and Telephony
International Publications Radio direction finders
Basic Operator Procedure Practical Operation of
Radar equipment,including
Basic Electricity starting, stopping,
tuning, transmission

and receiving
(b) Examination Procedure :
The examination itself takes from three to five days, depending upon
the applicant's ability. A set formula has been estsblished in so far
as the requirements of previous experience are concerned. Thus, in
order to take the Master's examination, the applicant ~nust be a holder
of a first mate's license issued by Liberia or another recognized mari-
time nation and must while the holder of such license, have served

either one year as a first mate or two years as a second mate.
In view of the short time spent in any port, especially in the case of
tankers, it would be most difficult for some applicarits to spend three to
five days in port for examination purposes. For this reason, in addition
to facilities for examination set up throughout the world, part of the
examination (except in the case of Masters and Chief Engineers) can be
taken on board a vessel. IVRITTES STATEIIENT OF THE GOYEKS.\IEST OF LIBERI.4 III

The Kepiiblic of Liberia fully realizes the importance of proper controls
aiid safeguards over the examination. To this end special procedures have
been devised for examinations ou board ship with instructions to Masters,
under whose directions or in whose presence the examinations are con-
ducted and who return affidavits asto freedom from assistance and time
taken. Moreovcr, in such situations a second, shorter, but nevertheless
comprehensive,cxamination must be taken at one of the designated port
facilities.
Besides being available in Monrovia and New York, facilities for the
deck and engineering examinations are provided by thrce of the Classi-
fication Societies who are acting as agents for the Republic of Liberia
in connection with the issiiance of the Liberiaii Certificates required by
the International Conventions. These Classication Societies are:
American Bureau of Shipping
Bureau Veritas
Lloyd's Kegister of Shipping

The radio examination \\,hich, in every case, must be taken at a shore
facility, is given rit facilitiesprovided by Société AnonymeInternationale
de Télégraphie SansFil (S.A.I.T.) and its affiliates.
Al1the examiiiatioiis are prepared in the officeof theDeputy Commis-
sione1 of Ma~itime AHak in New York and returned to this same office
uuon comuletion. When returned. thev are turned over to a Board of
~'x;iminerSfor gr:iding and recuin&eiidatiirns. ,\ctiiig ul>oiithcsc rccum-
iiicii~l;,tiuiis,the.Dci-iit\.Ci,iiirnissii~ricrtlicn iirocec~lstu ijsiic thc liceiir.
if warranted.
Because of the control exercised over the examination, the type of
examination itself, the subject-matter covered, and the accompanying
experience, medical, physical and moral reqiiirements, shipowners,
operators, insiirancc Company adjiistors, shipping men in general and
3fficers have a high regard for the Liberian licenses.

(3)Radar ObserverCertificales.
Radar Observer Certificates arc issuecl onlv to (iiialified masters and
deck officcrs holding Liberian Officers' ~iceAes of Competence. These
Certificates are issued onlv uoon the successfiil cornoletion of comore-
hensive examinations whi6h êmbracebasic radar the6ry, operation, ;se,
interpretation and plotting.

(4)Certificationof Lifeboatmert.
The Republic of Liberia requires that al1 passeiiger ships Aying its
Flag have the proper number of certified lifeboatmen in accordance
with theInternational Convention for the Safety of Life at Sea, 1946. The
seamen are examined both orally and by a ivritten examination and also
put through practical tests with ~espect to lo\vering. raising and man-
ning lifeboats and with respect to lifesaving equipment. These life-
boatmen certificates may be issued only by the Commissioner or the
Deputy Commissioner.When the examination is completed, the examiner
submits his reports and recommendations to the Depiity Commissioner,
who theii takes appropriate action.

(5) Casually Reports.
Regulation 1.6 provides that, in the event of any casualty on board
a Liberian vesse1 involving loss of life or loss or darnage to property,
estimated to be in excess of $5o,ooo, the alaster shall promptly fonvard112 \ZZRITTEN 5TATEhIENT OF THE GO\'ERKIIIEKT OF LIBERIA

a rt:ljt"t ilrcrea,ii, =igiicclIiiii,in rlii.('<iiiinii~~i~,i~i.r\I:.ririiiii. !\ti;iiri
aritl 10 clic I)~.~IIc\.C~riiiiiis~i~~ii~-ffJlxr~ritii? :ii~;iir,:II Sc 15.>'#rk.
Sii~,llrvijuri slinll5t.tfiirth rht~n:iiiir;,ii<Otii,.i.iSitiiiI,~~r tlic \csirl.
the typé of the vessel, the riame and address of the owner, the date and
time of the casualty. the exact locality of the casualty, the nature
of the casualty, and the circumstaiices under .&vhichit took place.
If the casualty involves collision with another vessel, the name of such

other vessel shall be provided. Where the casualty involves a loss of life,
the names of al1persons whose lives are lost shall be provided, and where
damage to property is involvecl, the nature of the property damaged and
the theii estimate of the exteiit of the damage shall be supplieci. This
requiremeiit goes beyond what isreqiiired by a number of other maritime
nations.
(6)0@cev8sQuestionnaire.

The Master of every vessel must complete a Questioiiiiaire with respect
to the officersserving on board the vessel, giving in detail the individual's
name, the position held, the Liberian and non-Liherian liceose he has
and also data with respect to the matches maintained. This report must
be siihmitted on an annual basis.

(7) Documentsfnrnished Master.
Upon registration of a vessel under Liberian Flag, the Master is handed
a letter with enclosures. These enclosures include:

r. The Liberian Maritime Law (Form RLX-107)
2. Liberian Regul-tions (Form RLM-108)
3. Pamphlet entitled "Regnlations for Preveiitiiig Collisions at Sea"
1Form RLM-1x1)

4. Blank Reports of Maritime Casiialty or Accident (Form RIA-log)
5. Notice to Navigators
6. Four copies of Oath of Xaster (Form RLM-1x3)

7. Officer's Qiiestionnaire
(8)Ships Files.

Once registcred, up-to-date files on every Liberian vessel are kept in
the Officeof the Commissioner in Monrovia and also in the Office of the
Deputy Commissioiier in New York. Al1 documents, correspondence
and Certificates relating to the particular vessel are kept in these indi-
vidual ship files. In addition, current schedules are maintained as to al1
Certificatesoutstandingas toany particular vesselinorder that the owner
or agent of such vessel be informed sufficiently in advance with respect
to the pending expiration of any Certificate and the need for renewirig a
Certificate. Any unreasonahle delay in the carryirig out of the surveys

required for the renelval of the Certificates could result in the striking
of the vessel from Liberian registry.
(E) Pavticipation in Intevnational ~Maritinae Afairs
Liheria has hy no means neglected its responsihilities and duties in

the community of nations. For example, in April1gg8 Liberia joined the
North Atlantic Ice Patrol and agreed to share the cost of operation and
maintenance of this service, based on its percentage of the total tonnage
navigating the waters concerned, in the same manner and on the same
hasis in which fourteen other countries belonging to the Patrol share WRITTEN STATEXIENT OF THE GOVERNMENT OF LIBERIA 113

the expcnse. As a resiilt, Liberia's assessment for the 1958sewasnthe
secondhighest of al1countries (afraction lessthan the highest, the United
Kingdom). l'lic North Atlantic Ice Patrol was set up hy leading maritime
nations after the "Titanic" disaster to provide protection from the
danger of icebergs to shipping on the North Atlantic route between
Europeand the United States.
Liberia11delegates have attended and actively participated in such
international conferences as the Law of the Sea Conference hcld in
Geneva in 1958, thc Blaritime Session of the Convention of the I.L.O.
in 1958, and the Intergovcrnmental Maritime Consultative Organiza-
tion's first meeting in London in January 1959.
Liberia was also irivited to be a member of the Sub-Coinmittee on
Tonnage and Measurement of the I.M.C.O. Maritime Safety Committee.
The Government of Liberia accepted this invitation, subject to rescr-
vation of its position iii relation to the validity of the clcction to thc
hlaritimc Safety Committee held on January 15, 1959; aiid it has since
activcly participated in thc work of the Sub-Committee. Liberia will be
participating in the Safety of Life at Sea discussions scheduled for0
and in the Load Liiie discussions originally scheduled for the same time
but now being deferrcd at the request of the United Kingdom Govern-
ment.
Liberia is also a member of the United Nations and is an active parti-
cipant in many branches of the United Nations and the technical or-
ganizations wliich arc affiliated with the United Nations. In addition,
friendship, commerce and navigation with other countries, including
the United States. the United Kiiigdom, Spain,France, Belgium. Wcst
Germany and Etliiopia. 4. WRITTEN STATEAfENT OF THE UNITED STATES

OF AMERICA

Introduction

The Assembly of the Inter-Governmental Maritime Consultative
Organization (hereinafter referred toasIMCO) in its Resolution
A. 12 (1), dated January ~g,1959, has requested the International
Court of Justice to give an advisory opinion on the following
question of law:

"1s the Xaritime Safety Comrnittee of the Inter-Govemmental
uary,i1959on,onstituted in accordance with the Convention for the
Establishment of the Organization?"

The IMCO Assembly has reqiiested this advisory opinion as a
consequence of differences of opinion which arose in the First
Session of the IMCO Assembly as to the interpretation of Article
28 (a) of the IAICOConvention.
Article 28 in its entirety reads as follo\\~s:

"(a) The Maritime Safety Coininittee shall consist offourteen
>lemberselectcd by the Assemblyfroin the hlernbers,govemments
of whichiiotless than eiglitshall be the largest ship-owningnations,
and the rernainder shall be elected so as tosure adequate repre-
sentation of Afembers,govemment of other nations with an impor-
tantinterest in maritime safety, such as nations interested in the
supply of large niimbers of crewsor in the carriage of largenumbers
of berthed and unberthed passengers, and of major geographical
areas.
(b) Alembersshall be elected for a term of four years and ihall
be eligibleforre-election."

Article56 of the IMCO Convention provides that legal questions
concerniiig the interpretation of the Convention which cannot be
settled by the Assembly or in some other agreed-upon manner shall
be referred to the International Court of .,ustice for an advisorv
opinion.
The Agreement between the United Nations and the Inter-
Governmental Maritime Consultative Organization was approved
by Resolution 204 (III) of the General Assembly of the United
Nations on November 18, 1948. and by Resolution A. 7 (1)of the

IMCOAssembly on January 13,1959. Article XIX of this Agreement
provides that this Agreement "shall come into force on its approval
by the General Assembly of the United Nations and the Assembly
of the Organization". Article IX of this Agreement authorizes the WRITTEN STATEMENT OF THE UNITED STATES OF AMERICA II5

IMCO Assembly to request advisory opinions of the International
Court of Justice on legal questions arising within the scope of its
activities.
As of January 13, 1959, therefore, the IMCO Assembly was
authorized, pursuant to Article 96 (2)of the Charter of the United
Nations, to request the International Court of Justice for an advisory
opinion on legal questions within the scope of the activities of the
Inter-Governmental Maritime Consultative Organization.
As indicated in Section 1of this statement, "Proceedings in First
IMCO Assembly", certain delégations questioned whether il was

"wise and justifiable" to refer this dispute to the International
Court of Justice. (IMCO/A.I/SR. 9, pp. 6,7, 8.)The United States,
however, has consistently maintained that this is not only an
appropriate procedure, but the most appropriate procedure, in view
of the explicit terms of Article 56 of the IMCO Convention. The
Court itself has observed that, as the principal judicial organ of the
United Nations, the interpretation of a multilateral treaty is a
"function which falls within the normal exercise of its judicial
powers". Conditions of Admission of a State to Membership in the
United Nations (.44rtide4 ot the Charter),I.C.J. Reports 1947.1948,
pp. 57, 61; Competenceof the GeneralAssembly for the Admission of
a State tothe United Nations, I.CJ. Reports 1950,pp 4, 6. This also

was the view of the Permanent Court of International Justice.
Designation of the Workers' Delegatefor the Netherlands of the Third
Session of the International Labour Conference, P.C.I.J., Series B,
No. I; Free City of Danzig and International Labour Organisation,
P.C.I.J., SeriesB, No. 18.

1. PROCEEDING IS FIRSTIMCOASSEMBLY

The election of the Maritime Safety Committee was the eleventh
item of the agenda of the First Session of the IMCOAssembly. The
Assembly proceeded to this election atits eighth meeting on January

15, 1959 (IMCO/A.I/SR. 8). The election was conducted on the
basis of Resolution A. 9 (1)of the Assembly, proposed by the United
Kingdom (IMCO/A.I/Working Paper 6), by which a separate vote
was taken for each of the eight places on the Maritime Safety
Committee for the "largest ship-owning nations", under subsection
(a) of Article 28 of the IMCO Convention.
The United Kingdom draft resolution, which was subsequently
adopted as Resolution A.9 (1),provided that "the voting shall be in
the order in which the nations appear on the Secretary-General's
list" [IMCO/A.I/Working Paper 5, "Merchant fleets of IMCO
Members according to the Lloyd Register of Shipping Statistical
tables 1958~1,and that "those eight nations which first receive a
majority of votes in favour shall be declared elected". (IMCO/A.I/

Working Paper 6.) 116 \\'RITTIPN STATEhll3NT OF THE UNITED STATES OF AMERICA

The United Kingdom delegation directly challenged the qualifi-
cations of Liberia and Panama for the Maritime Safety Committee,
stating that "neither from the point of view of interest in maritime
safety nor from that of tonnage could Liberia or Panama be
included amoiigst the eight maritime countries referred to in
Article 28 (a) of the Convention". (IMCO/A.I/SK. 7, p. 3.)

The Liberian delegate maintained that under Article 28, "the
Assembly had to clect the eight largest ship-owning nations", that
'hot to accept the list of those eight nations, which was drawn up
in application of a valid criterion, and to refuse to elect the countries
appearing in tlie list \irouldconstitute a breach of the Convention".
(IMCO/A.I/SR. 7, p. 4.) The Liberian delegate further stated that
he was prepared to siibmit this legal dispiite to the International
Court of Justice. The United States delegate stated the view of his

Governmcnt that under Article 28 (a), the eight IhlCO Members
with the largest gross registered tonnage should be elected to the
Committee.Liberia and the United States had proposed amendments
to the United Kingdom draft resolution, providing that "for the
purpose of Article 28, the eight largest ship-owning nations shall
be determinedby reference to the figuresfor gross registered tonnage
asthey appenr in the issue of Lloyd's Kegister of Shipping Statistical
Tables' ciirrent on the date of the election", tliat "at the present

time the eight largest ship-onfning nations are the United States of
America, the United Kingdom, Liberia, Nor\\.ay, Japan, Italy, the
Netherlands and Panama", and that, "therefore, in accordance with
Article 28 of the Convention the eight members elected shall be the
largest ship-ou~ning nations". (IMCO/A.I/\llorking Paper II;
IhfCO/A.I/SR. 7, pp. 13,14.) This amendment having been rejected
by a vote of 17 to II, the Liberian delegate proposed that an
advisory opinion of tlie International Court of Justice be sought on
the interpretation ofArticle28 before voting on the United Kingdom

draft resolution and before the election of the Maritime Safety
Committee. The President of the Assembly ruled that the voting
should proceed. The Liberian delegate stated that he would not
challenge the President's ruling, but observed that " a very thorny
legal problem \vould anse should the International Court of Justice
find that the Maritime Safetv Committee had been established
illegally". (IMCO/A.I/SII. 8, p: IO.)
The Assembly, having adopted the United Kingdom draft
resolution, by 18votes to g with I abstention, as Kesolution A. g (1)

(document lhICO/A.I Rcsolution g), then proceeded to the election
of the Maritime Safety Committee in accordance with its terms.
The Secretary-Gcneral's list (IMCO/A.T/Working Paper 5) read as
follows :

' TheLloyd's Registeof Shipping.laiidoiiisoiiof the principal "classification
societies" supcrvising the building of sïî-govesscls. Lloyd's Register issues
tons. Sec1.lies. "Chartering and Shipping Termç". Amsterdarggr.Chapter XI.er "Merchunt peet O/ the IMCO members accordingto the
Lloyd Register ofShipping Statistical tables1gj8

Registered
Tons gross

1 U.S.A.
z Great Britain and Northcrn
Liberia
Norway
.lapan
Italy
Xetherlands
Panama
France
Germany

The Secretary-General's list also included fifteen other IBICO
hlember States in order according to the sizc of their respective
registered tons gross, and six IMCO Members for whom no statistics
appeared in the Lloyd's Register. Thus, under the tems of Reso-
lution A. 9 (1),by which the first cight nations on this list recciving
a majority vote were to bc declarcd elcctcd, the Assembly coiild

have elected eight IMCO Members nt the bottom of the list, i.c.
with the smallest amount of registered tonnage and even with no
registered tonnagc.
On scparate roll-cal1votes, thc elcction took place as follo~vs:
I. United States of America-elected 27-0.1'

2. United Kingdom of Grcat Britain and
Xorthern Ireland-clectcd 27-0-1
3. Liberia-not elected 11-14-3

4. Nonvay-electcd 25-0-3
5. Japan-elcctcd 25-0-3
6. Italy-lected 2 5-0-3

7. Netherlands-elected 25-0-3
8. Panama-not elected 9-14-5
9. France-clectcd 23-2-3

IO. Federal Republic of Germany-electcd 23-2-3
(IMCO/A.I/SR. 8, pp. 11-20).

The United States delegate who had voted against the election
of France and the Federal Republic of Germany explained "that
the United States was opposing them only as two of the eight

' The Argentine delegate abstained fram voting, çtating after the vote. that
"the only possible legal soluwasto refer the matter to the International Court
voted againçt Liberia and Panama. neventa majority of the IAICO memberçhip.118 WRITTEN STATEAIENT OF THE UKITED STATES OF AhlERICA

members, to be consistent with the legal principle it had maintained
throughout, but certainly was not opposing them for election to
other seats of the Committee". (IMCO/A.I/SR. 8, p. 21.) '
The delegates of Liberia and Panama each stated that they had

abstained from voting after the vote on Liberia, since the election
was "nul1and void". (IAlCO/A.I/SR. 8, p. 21 : IMCO/A.I/SR. 9, p. 2.)
After the Assembly had proceeded to fil1the remaining six seats
of the Committce, elccting Argcntina, Canada, Grecce, Pakistan,

U.S.S.R. and the U.A.K., at its ninth meeting on January 15, 1959
(IMCO/A.I/SlZ. g, p. 5), the Liberian delegation iritroduccd a clraft
resolution (IMCO/A.I/Working Paper 12) requesting an advisory
opinion from the International Court of Justice on the interpretation
of Article 28 of the Convention. (IhICO/A.I/SR. g, p. 6.)

On motion of the Netherlands delegate, the Assembly deferred
consideration of the Liberian draft resolntion for twenty-four honrs.
(Id., p. 7.) Accordiiigly, the Assembly next considered this item at
its tenth meeting o~iJanuary 16, 1959.
At the tenth meeting on January 16, 1959, the Netherlands

delegate stated that his delegation "did not believe it necessary or
even strictly appropriate for the Assembly to seek the advisory
opinion of the International Court of Justice"; but that his
delegation "did not wish to stand in the way of the Liberian dele-

gation'sdesiretoobtain an authoritativeol~inion of theInternational
Court of Justice", so would abstain on the Liberian lxoposal but
would take Dart iti the discussion in the Leeal Committee. (IMCOI
A.I/sR.~~, 'pp. 3, 4.)
The delegate of the Utiited Kingdom, in order to expedite the

work of the Assembly, thcn proposed amending paragraph 2 of the
Liberian draft resolution toread:
"That the forinulation of the questions to be refcrred to the

Court should be as follows: (1) hfust the 'eight largestship-owning
nations' be detennincd solelyaccording to the tonnage on the na-
tional register? (2) If so, is the Assemblyunder a legal obligation

'The United States delegation had been instructed to support the principlc that
the correct interpretationof the language in Articl28 (a),"of which not lesç than
eight shall be the largest ship-owning nations" was that the languago meant tliose
eight IMCO nations with the largest total registered tonnage of ships iiying the
respective flags of each of the eightavernments. The United States position was
baçed uponprinciple, without reference to any specihc State or States. Atthe tirne
the United States Ilelegatian departed for the Assembly, the fallowing were the
firçtïight IIlfCO Members inorder of gross tonnage on Lloyd's Register for 1958:
United States. United Kingdom. Japan, Italy, Netherlands. France. Canada. and
Argentina. Gerrnany, Liberia. Sorway and Panama were not then IhlCO Rlernbers.
but became IMCO Mernbers shortly before or concurrently with the opening of
the Assembly on Jvnuary 6. rg5g.
After the election of the Cornmittee. the United States delegatimade a decla-
ration for the record to the eflect that theUnitedStateswould DartiCiDate fullv in
thr\rorl<of the 3laritime SafetyCoiiiniitieebut wirhviitI,rrlu;lic&to the légal
poritiunidthe Unitr<lStates regdrding the vrlidit)ofthe electlon ofthe fimt eight
nirnilxr-uf the 3luitime Snfet). Commiitee. (I\li:O/A.i~Slt 9. p.6) \VRIï"ïEN STATEllfEST OF THE UNITED STATES OF AIIERICA II9
to elect to the Maritime Safety Committeethe govemmentsof the
nations having the largest registeredtonnage?"

, TheUnited Kingdom delegatestated that "formulationreproduced
the essence of the controversy"; and that if the Assembly accepted
the United Kingdom amendment, "there \r.ould be no need to refer
the matter to the Legal Committee of the Assembly". (Id.,p. 4.)
The United States delegate "asked the United Kingdom dele-
gationwhcther their proposa1meant that Liberia and Panama other-
wise met the qualification of Article 28, or was only half the problem
being referred to the International Court of Justice?" The United
Kingdom delegate said "that his dclegation did not think that
Liberia and Panama met any of the criteria in Article 28, but the
main point at issue was whether the eight countries should be
elected solely on the basis of registered tonnage". (Id., p. 5.)
The consensus of the Assembly was that the formulation of the
question for the Court should be referred toheLegalCommittee, and
the Liberian draft resolutions was "accepted in pnnciple". (Id., p. 6.)
The Legal Committee met immediately and discussed the issues
extensively in three separate meetings, on January 16, 17 and 19.
(IRICO/A.I/LEG/SR. 4-SR. 5-SR. 6.) (In addition, a "working

group" composed of delegates of France, Liberia, the United
Kingdom and the United States met on January 16 and 17, in an
effort to formulate a text.) The dehate in the Legal Committee
centered about the scope of the question to be put to the Court.
The United Kingdom delegation maintained that there was but one
issue to go to the Court, namely: "hlust the eight 'largest ship-
owning nations' be determined solely according to the tonnage on
the national register?" (IMCO/A.I/LEG/Working Paper 7.) The
Liberian and United States delegates pointed out that if the Court
were limited to this text, the Court would have to answer "no" to
the question, because Article 28 also contains the criterion of "an
important interest in maritime safety". It \vas also pointed out
that in the Assembly the United Kingdom delegation had challenged
the interest of Liberia and Panama in maritime safety, thus placing
this specifically in issue.
During this dehate, the Presidcnt of the Assembly, Mr. Audette
(Canada),intervened with a compromise proposa1(IMCO/A.I/LEG/
Working Paper g, Annex 10) to forward to the Court, together with
various Assembly Papers, the simple question: "1s the Maritime

Safety Committee of IMCO,which was elected on January 15,1959,
constituted in accordance with the Convention of IMCO?" On
motion of the United States delegate, and over the protest of the
United Kingdom delegate, the Legal Committee voted to submit
Mr. Audette's proposal tothe Assembly as the action favored bythe
Legal Committee. The vote, on roll-call, was: 8 for (Argentina,
France, Greece, Israel, Japan, Liberia, Panama, United States);
z against (U.S.S.R., United Kingdom); 3 abstentions (Italy,
Netherlands, Xorway). (IMCO/A.I/LEG/SR. 6, p. 8.)120 WRITTEN STATEUENT OF THE UNITED STATES OF AMERICA

When the Assembly considered this item again on January 19,
1959(IMCO/A.I/SR. II), there was submitted to it a draft resolution
hy the United Kingdom, Liberia and Panama, based upon Mr.,
Audette's proposal. This resolution was adopted by the Assembly
as IMCOIA. 12 (1)which was transmitted to the Court on March 23,

'959.

II. SUXMARY OF ARGUMENT

The one issue before the Court is whether the Maritime Safety
Committee of IMCO has been constituted in accordance with the
IMCO Convention.
The provision specificaily relating to the composition of the
Committee appears in Article 28 (a), which establishes criteria
which the IMCO Assembly is hound to observe in performing its
function of constituting this Committee. The Assembly does not
have complete freedom of choice in this matter: it is mandatory for

the Assembly to elect to the Committee fourteen nations "having
an important interest in maritime safety" of which 'hot less than
eight shall be the largest ship-owning nations". ln other advisory
opinions, the Court has established the principle that an organ of
an international organization must look to the terms of the charter
£rom which it derives its competence, in making its decisions in
connection with its functions. Nevertheless, the firsteight mernbers
of the Maritime Safety Cornmittee were elected on the baçis of a
procedure which clearly disregarded the requirement of Article
28 (a) of the Convention.
In considering the IMCO Convention in its entirety to determine

itsmeaning, in accordance with the practice of the Court, it becomes
apparent why the framers of the Convention inserted these specific
criteria in Article 28 with respect tothe composition of the Maritime
Safety Committee.
The first and foremost objective of thisinternational organization
is to promote the general adoption of the highest practicable
standards in matters coucerning maritime safety and efficiency of
navigation. (Inthis connection, the Safety of Life at Sea Convention,
1948, negotiated contemporaneously with the IMCO Convention,
confers important functions upon IMCO, and specifically upon
IMCO'sMaritime Safety Committee.) This is the underlying reason

for the requirement that al1 members of the Maritime Safety
Committee must have an "important interest in maritime safety"
and that the "eight largest ship-owning nations" inust be included.
Liberia and Panama were two of the eight largest ship-owning
nations, and by virtue thereof, as well as by their participation in
maritime safety activities, they should be deemed to have an
important interest in maritime safety.
International law recognizes the right of every sovereign State to
decide which vessels may have the right to fly its flag, and to IVRITTEX STATEfilEXT OF THE USITED STATES OF AMERICA 121

prescribe the rules for registration of vessels under its flag. Under
international law, the Statc of the flag of registry is responsible for
the adoption of maritime safety practices with respect to its
registered shipping. Therefore in the light of the basic objective of
the Convention the expression "ship-owning nations" in Article
28 (a)means nations of registry. This is borne out by the Safety of
Life at Sea Convention, 1948, which provides: "The ships to which
the present Convention appliesare ships registered in countries the
Governments of which are Contracting Governments ..."(Article II.)
The "largest" ship-ourningnations are to bedetermined by registered
tonnage as set forth in the Secretary-General's list-the only
statistics bearing on the point which were before the Assembly. The
importance of tonnage to IMCO is shown by the requirement that

at least seven IMCO Members "each have a total tonnage of not
less than ~,ooo,ooogross tons of shipping "as a condition precedent
for the IMCO Convention to enter into force (Article 60). Also,
IRlCO Members have been assessed largely on the basis of their
respective gross registered tonnages.
Nevertheless, there have been excluded from the Maritime Safety
Committee two of the eight largest ship-owning IRlCO Rlember
States which have the responsibility, under international law, for
the adoption of maritime safety practices with respect to approx-
imately 15,000,ooo tons of shipping. It seems clear that this inter-
prctation of the IMCO Convention, by tlrose delegations voting to
exclude these two IMCO Members from the Committee, can only
serve seriously to impede the work of the Committee in carrying
out its objective of promoting maritime safety; and that conse-
quently, such an interpretation is inadmissible as being completely

contrary to the spirit of the claiises providing for the creation of
the Committee.
It is submitted to the Court. in conclusion, that any election of
the Maritime Safety Committee must include those IMCORfembers
which are the eight largest ship-owning nations, that such nations
(as the Convention ncccssarily implied) have by reason of their
ranking size the required interest in maritime safety (a conclusion
reinforced in the present instance by the demonstrated interest of
Liberia and Panama), and that the cight largest ship-owning nations
can only be determined by rcfcrcncc to gross tonnage registered
under the nations' flags. To cxclude two of these eight would
frustrate the purpose of the IMCO Convention which is to promote
maritime safety to the grcatcst extent possible. Since Liberia and
Panama, although so qualificd, were deliberately excluded from the
Committee, it is the view of the United States that the Committee

has not been constitutcd in accordance with the IhICO Convention.122 WRITTEN STATEHENT OF THE UNITED STATES OF AIlERlC.4

III. ARGUMEXT

A. In constituting the Maritime Safety Committee,the IMCO
Assembly was bozrnd to comply wiflz the ternzs of the
Convenfion.In padiczrlar, theAssembly was boundtoobserve
the criteria of Article 28 relating to the conzposition of
the Committee.

In its Advisory Opinion of May 28th, 1948, Conditions of Admis-
sion of a State toembership in the United Natious (Article 4 of the
Charter), the Court stated:

"The political character of an organ cnnnot release it from the
observance of treaty provisions established by the Charter when
they constitute limitations on itsowersor criteria for its judgment.
To ascertain whether an organ has freedom of choice for its deci-
sions, referencemust be made to the terrns of its constitiition..."
(1.c.J. Reports1947-1948,PP. 57, 64.)
In that Opinion. it will be recalled, the Court concluded that a
hlember of the United Xations which is called iipon, in virtue of
Article 4 of the Charter, to pronounce itself by its vote, either in the

Security Council or in the General Assembly, on the admission of
a State to membership in the United Nations, is not juridically
entitled to make its consent to the admission dependenton conditions
not expressly provided by paragraph I of the said Article.
In another Opinion, VotitzgProcedure 012 Questions Relating to
Reports and Petitions Coizcerfiingthe Territory of Sozrtlz-WestAfrica,
June 7th, 1955 ,he Court aas requested by the General Assembly
to elucidate the correct voting procedures to be followed by that
body in connection with reports and petitions concerning the
Territory of South-West Africa. The Court concluded unanimously
that the General Assembly rule requiring a two-thirds majority
vote for decisions on such questions constituted a correct voting
procedure.
The Court's Opinion stated:

"...It is from the Charter that the General Assemblyderives its
com etence to exercise its supervisory functions; and it is within
the Eamework of the Charter that thc General Assemblymust find
the rules governing the making of its decisionsin connection with
those functions. It would be legally impossible for the General
Assembly, on the one hand, to rely on the Charter in receivingand
and, on the other hand, to reach decisionsrelating to tliese reports
and petitions in accordance with a voting system entirely alien to
that prescribed by the Charter." (I.C.J. Reports955, pp 67. 76.)

Separate opinions were filed by Judges Basdevant, Klaestad and
Lauterpacht in this proceeding, al1 of which appear to support a
conclusion that the IRICO Assembly, in constitutiiig the Maritime WRITTEN STATEhlENT OF THE UXITED STATES OF AMERICA 123

Safety Committee, was bound to observe the criteria established by
Article 28 of the IkICO Convention.
Thus, Judge Basdevant observed:
"On peut ajouter que lorsque l'avis de 1950 a énoncéque. dans
l'exercice de sa surveillance, l'Assembléegénéraledevrait se confor-
mer, alitant que possible,à la procédure suivie par le Conseil de la
Sociétédes Nations, il a entendu que l'Assembléeaurait, àcet égard,
un certain poiivoir d'appréciation en vue de déterminer dans quelle
mesure cette conformité lui paraîtrait possible. Cela se cornprend
trés bien quand il s'agit de déterminer par quel organe elle se fera
assister et de qirellefaçon: cela peut resàla discrétiondc l'Assem-
bléegénérale.Il en va tozctautrement de la manière dontellependra
ses décisions:ce n'est point là matièreouverteà sa discrétion.II ne
saurait dépendre de l'Assemblée générale et de l'appréciation des
possibilités qu'elle pourrait entrevoirà cet égard, de modifier ce
que prescrit l'article6 de la Charte pour l'adaptcr plus ou moins
aux méthodes en usage à la Société desNatioiis pour les décisions
du Conseil. L'avis de 1950 n'a pu supposer et par conséquent ad-
mettre que l'Assembléegénéralefùt investie d'un tel pouvoir dans
le cas actuellement considéré." (Id., p82. Underscore siipplied.)

In his separate opinion, Judge Klaestad stated:
"\\'lieii thc Court delivered its Advisory Opiiiion of 1950, it was
not unaware of the fact that the Charter of the United Xations had
rejected the principle of unanimity, and when the Court expressed
the view that the supervisory functions with regard to the Territory
of South-West Africa, previously exercised by the Council of the
Leaguc, were henceforth to be exercised by the General Assembly of
the United Nations by virtue of Article IO of the Charter, it was
implicitly referring to that body with the organization and functions
conferred upon it by the provisions of the Charter, including the
provisions of Article 18". (Id., p. 86.)

The following language of Judge Lauterpacht's opinion seems
most applicable to the circumstances of the present case:
"Principle would seem to demand that whenever the basic instru-
ment of a corporate political body prescribes the manner in,which
its collective will is to be formed and expressed, that basic instru-
ment is in this respect paramount and overriding and nothing Save
a constitiitional amendment as distinguished from legislative action
can authorize an alternative procedure of voting." (Id., p. 109.)

Article zS (a) of the IMCO Convention establishes two basic
criteria governing the composition of the Maritime Safety Committee
which are relevant to the question of law now presented to the
Court: first,al1 fourteen of the members of the Committee must be
nations "having an important interest in maritime safety"; and
second, not less than eight of the members of the Committee must

be "the largest ship-owning nations".
As constituted by the election held by the IMCO Assembly on
January 15, 1959, the Committee does not include Liberia orPanama. Article 28 (a) of the IhlCO Convention requires that the
Committee include both Liberia and Panama, however, because

each is qualified for membership since it is a nation "having an
important interest in maritime safety", and each is required to be
elected to the Committee since it is one of the eight "largest ship-
owning nations".

B. Liberia and Panama are qualified /or the Maritime Safety
Committee on the basis of their im9ortant interest in

maritime safety.
It should be noted at the outset that the language of Article 28(a)

itself aDuears to be based on the unstated assumution that a Iaree u
ship-o&ing nation automatically has an important interest in
maritime safety. For instance, the English language text reads:
,'... those nations liaving an important interest in maritime safety,
ofwhichnot less than eightshallhethe largestship-owningnations...'!

It is significant that the phrase does not read: "... of which not less
than eight shall bc the largest ship-owning nations among those

having an im9ortant interest in maritime safety", as would be required
by logic unless it were assumed that the largest ship-owning nations
must necessarily have an important interest in maritime safety, so
that no further qualification was required. Further, the Article then
continues as follows:

" ... and the remainder shall be elected so as to ensure adequate
representation of Illembers, governments of othernations with an
important interest in maritime safety ..."(Underscoresiipplied.)

Again, the clear implication isthat each of the largest ship-owning
nations necessarily has an important interest in maritime safety,
while othernations would have an important interest only for other
reasons, such as their supplying large numbers of crews, or carrying
large numbers of passengers l.
Thus it may be inferred from the language itself that one of the
largest ship-owning nations was automatically a nation with an

important interest in maritime safety. This inference of course is a
reasonable one in view of the fact that it is only the nation of

- u . r - ~ ~ ~ ~ - - ~
the interestthat other countries had in these mattera. These interestscould he
divided into threemain categories. namely, the interest that resulted fr(a)the
safety of cargoes carried(bJ the safety of the passengerç camied (ïg. pilgrims),
andIcl the crews of vessels (cg. Lascar seamen). These three categories, the Indian
non-seafaring nations,thatis to say, to nations who did not actually own or have
a large number of merchant vessels". United Maritime Consultative Council,
Washington, D.C., document UMCC ?/41. p. 18,Octpber 14. 1946.The records of
this Councilare appended to this statementas Anncx 1. IVRITTES STATE.\IEST OF THE USITED STr\TES OF A3LERICA 1'2.5
registry which can impose safety regulations on its fiag vessels on
the high seas, and a nation which has the right to impose and the

obligation to enforce such regulations on a large amount of tonnage
necessarily has an important "interest" in the subject. On this
basis alone, therefore, both Liberia and Panama were qualified as
"nations having an important interest in maritime safety".
But in the present case, this result is reinforced by the demon-
strated important interest of Liberia and Panama in maritime
safety, a criterion\\,hich, under Article28(a) applies not only to the
eight largest ship-owning nations, but to al1 fourteen members of
the Committee'. Surely a State has an "important interest in

maritime safety" when it actively participates in international
maritime safety programs, including particularly participation in
IMCO itself, and when it accepts substantive international respons-
ibilities under such conventions as the Load Line Convention,
signed at London on July j, 1930. and the Safety of Life at Sea
Convention, with Regulations, signed at'London on June IO, 1948.
With çpecific regard to Liberia and Panama, which seek the
Court's affirmation of their treaty right to serve on the Maritime
Safety Committee, it should be noted that these two nations were

among the t~venty-eight United Nations Mernbers represented at
the first IMCO Assembly, although al1 eighty-one Members of the
United Nations were eligible to join IhlCO and to be represented at
the INCO Assenibly as a matter of right under Article 6 of the
Convention.
In addition, Liberia aiid Panamahave accepted the international
obligations of the Load Line Convention, 1930, and of the Safety
of Life ai Sea Convention, 1948. Both countries participate in the
North Atlantic Ice Patrol, and Liberia also participated in the

IMCO Suh-Committec on Tonnage Measurement, London, July,
1959. which by Kesolution A. 4 (1) was open, with voting rigbts, to
al1 IMCO Members wishing to participate.
Some delegations ai the IMCO Assembly opposed the election of
Liberia and Panama as members of the Maritime Safety Cornmittee
on the ground that these two IMCO Members failed to meet the
qualification of having "an important interest in maritime safety".
The United Kingdom delegate advanced the principal argument,
and it is so significant that it is here quoted at some length. The

summary record of Iiis statement contains the following:
"There \vas clearly no question of dealing with the prohlem of
flagsof convenience,wliichlay outside the limits of that discussion.
What tlie Assernhlyliad to do was to chooseeight countrieswhich,
on the one hand, Iiad an important interest in maritime safety and,

' In addition to the United Stathe Vnited Kingdom.Norway. Japan.Italy.
the Setherlandç, Franand thePederalRepublic of Germany, the following lMCO
AIembers were elected tthe cornmittee: ArgentinaCanada, Greece, Pakistan,
U.S.S.R. ..A.R.126 WRITTEN STATEMENT OF THE UNITED STATES OF AMERICA

on the other hand, were the largest ship-owning nations, as those
were the criteria laid dom in Article26 of the Convention.
In regard to Liberia's interest in questions of maritime safety, it
was undeniable that the vessels registered in that country were
among the niost modem and most up-to-date in the world. That was
hecause the Liberian merchant navy belonged largely to excellent
American ship-owners and, furthermore, because Liberia left ques-
tions of marine safety and administration to the very experienced
Classification Societies such as Lloyd's Register and the American
Bureau. The same was true of I'anaina. But the matter in hand was
not the election of United Stateship-owners or of the Classification
Societies to the Maritime Satety Committee. What the Assembly
maritime questions anddseeto what extent they were able to makena
contribution in various fields connected with safety, such as the
examination of masters, mates and engineers, the training of sur-
veyors, the conducting of inquiries after collisions, the handling
of dangerous cargues, etc. It was obvious that in al1 those fields
neither Liberia nor Panama was, at the moment, in a position to
make any important contribution to maritime safety. The United
Kingdom hoped both countries would make such rapid progress as
to permit of their entry to the Committee at a later date.
As to the second criterion he had mentioned, namely, relative im-
portance 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 (a) of
the Convention.
He drew particnlar attention to the fact that the election of those
two countries to the Maritime Safety Committee would have the
result of excluding France and the Federal Kepublic of Germany
from the Comrnittee. It could not be denied tliat the two latter
countries could contribute much more to maritimesafety than could
Liberia and Panama. He urgcd reprcsentatives not to forget that
the practical objective they were pursuing\vas to ensure the safety
of human life at sea. The United Kingdom delegation thought it
wonld not be right to choose, for the attainment of that purpose,
two countries which had neither the experience nor the necessary
capacity for the task."
Although certain other nations supported the position of the
United Kingdom, no other arguments were advanced as to why

Liberia and Panama were not aualified as beincr amone the eirht
largest ship-owning nations haviig an important ifiterest h marithe
safety. (IMCO/A.I/SR. 7,pp. 2-4.)
The argument.in brief.w.s ~ ~t (1 1he Marine Safetv andiidmini-
stration Of the le ewtas handled bi Classification Societies such as
Lloyd's Kegister and the American Bureau, (2) that the criterion
was not whether the particular ship-owning nation had an important WRITTEN STATEDIENT OF THE UNITED STATES OF AMERICA
127
interest in maritime safety (even thoùgh at the opening of the
statementthis was admitted to bethe question before the Assembly),
but rather whether they were able to make a contribution in various
fields connected with safety, and (3)that in determining what was
a "ship-owning nation" the "vessels had really to belong to the
the countries in question", as distinguished from the criterion of the

flag flown. While the third point is discussed in more detail under
Section C of this statement infra, it might be noted at this point
that again the argumentation was contrary to the initial statement
that "There was clearly no question of dealing with the problem
of flags of convenience".
The argument that Liberia and Panama left questions of maritime
safety and administration to Classification Societies is completely
met by the express provision of Regnlation 6 annexed to the Safety
of Life at Sea Convention, 1948, accepted by both Liberia and
Panama, which States:

"The inspection and survey of ships, so far as regards the enforce-
ment of the provisions of the present regulations for granting ex-
ceptions therefrom, shall be carried out byofficersof the country
in which the ship is registered, provided that the Government of
eachcountry may entrustthe inspection and survey eithertosunieyors
nominated for the purpose or to organizations recognizedby il. In
every casethc Governmentconcemed fullyguarantees the complete-
ness and efficiency of the inspection and survey." (Underscore
supplied.)

Both the American Bureau of Shipping and Lloyd's Register of
Shipping are officially recognized ClassificationSocietiesl. They are
used for this purpose by the United States and other maritime
countries. The very fact that Liberia and Panama saw fit to make
use of well-recognized organizations to. ensure proper safety pre-
cautions on their flag vessels shows their interest in maritime safety.
To what extent nations were to make a contribution in various
fields connected with safety was not the primary question which
should have been before the Assembly, namely, whether the nations
had an "important interest in maritime safety". As has been stated

ahove, nations without any merchant fleet at al1 might have such
an important interest. In any event, the Convention was obviously
designed to place the eight largest ship-owning nations on the
Maritime Safety Committee in the light of the contribution to
safety at sea wbich they could make not only through the work of
that Committee but also through their control of a substantial
amount of tonnage afloat. As is pointed out under Section C of this
staternent, infra, only the nation of the flag of the ship is in the
position to see that the ships under its flag observe proper require-
ments.

1 J. Reç, "Charteringand Shipping Terms", Amsterd1951.p. 164. ships are representative of the most modern up-to-date ships to bese
found anvihere in the world.
The Governments of Liberia and Panama have entrusted to the
Bureau, among a number of other classification societies, not only
the insvectioni customarilv carried out to insure the maintenance
iicccss&y to continue tlicCI:issiricationoftlicvcsscls. but. also the
:i<l<Icinspectioiis required to assiire coiiipl~:incewitli tlic proiisiuns
of tlic 1nterii;ttiunal Loiid 1,inc;inclthc %fctv of 1.;ttSca Conveii-
tions to whicli these riatiorisarc sigiiatory. ~iic l<ur,?auij fiillyatiare
of the responsihilities eiitriisic(l t<iits Siirve\.ors. 1\11inspcctioiis ;ire
Iwiiig ctriricd uiit in;ttliorou~hl~~diligciit inaiiiicr so iis to satis-
fnctorily discli;irge tlies~. rt~sl~iiiiiil>ilitiesoifar n; the: ships
Cltissc<l\vit11tlic Ijurcau arc coiicerncd. tlicrc cm bi; iio hosisfùr
considering these ships to be sub-standard."

C. Liberia and Panama should have been included in the
Maritime Safety Committee as two of the eight "largest
ship-owning nations". "Largest ship-owning nations" in
Article 28 (a)01 theIMCO Conventionmeansthosenations
with the largest registeredtonnage.

Since the controversy in the Assembly related specifically to the
meaning of Article 28 of the IMCO Convention, the three equally
authentic language texts of this Article are set forth:

English Frelich Spanish
(a) The Maritime (a) Le Comité de (a) El Comité
Safety Committee la Sécurité de Seguridad
shall consist maritime SC Maritima se
of fourtecn compose de compondri de
Members clected quatorze Membres catorce Micm-
by the Assembly éliispar bros elegidos
from the l'Assemblée por la Ascmblea
hlembers, Govern- parmi les entre los
ments of tliose Membres, gou- gobiernos de los
nations having vernements des paises que tengaii
an imnortant navs oui ont un un interésimvor-
iiitt:rvst in iiii,:riiii~r,riniit tniitc cn las ciies-
niaritinic saf<:ty. (1;iiiIcs rlii~stions 1ionc.sde scguri-
of wliich not lcss d<:s6c11ritkriiitri- da11ninrltiiiia. de
than eight shall time. Huit au los cuales ocho
be the largest moins de ces por Io menos,
ship-owning pays doivent deberan ser
nations. and the Gtreceux aquellos paises
remaiuder shall qui possedent que posean las
be elected so as les flottes de flntas mercantes
to ensure adequate commerce les plus mis importantes;
representation of importantes; los demis seran
members, Govern- l'élection des elegidos de manera
ments of other autres doit assurer que se asegure ilne
nations with an une représentation representacion
10130 WRITïEN STATEMENT OF THE UNITED STATES OF AMERICA

English French Sflanish
important interest adéquate d'une part adecuada, por una
in maritime safety, aux hfembres, gouver- parte a los Go-
such as nations nements des autres bienios de los
interested in the pays qui ont un otros paises con
supply of intérêt important importantes inte-
laÏie numbers of dans les qüestions reses en las cues-
crek or in the de sécuritémari- tiones deseguri-
carriage of large time, tels que les dad maritirna, tales
and unberthedrthed sortissants entrent, como los paises
passengers, and of en grand entran, en gran
major geographical nombre, dans la numero, en la com-
areas. composition des position de las
équipages oii qui tripiilacioneO
sont intéressés que se hallen
an transport d'un interesados en el
grand nombre de transporte de un
passagers de ca- . gran numero de
bine et de pont et, pasajeros con
d'autre part, aux cabina O sin ella,
principales ré- y, por otra parte,
gions géographiques. a los paises de
mayor irea geo-
grifica.

(b) hlembers shall be (b) Les membres du (b) Los hfiembros del
elected for a Comitéde la Comité de Seguridad
term of four Sécuritémaritime Maritima serin
years and shall sont éluspour une elcgidos por un
be elieible for oériodede auatre ~eriodo de cuatro
ans et sont ;é- afios y son sus-
éligibles. ceptibles de re-

Thus, these three language texts have the same substantive
meanings; and this meaning is clear. The Maritime Safety Committee
shall consist of fourteen IMCO Members. Of these fourteen Members,
not less than eight "shall he the largest ship-owning nations",
"doivent être ceux qui possèdent les flottes de commerce les plus
importantes", "deberin ser aquellos paises que posean las flotas
mercantes mis importantes". The text does not say that the
Assembly "may" elect eight "of" or "from amongst" the largest
ship-owning nations, nor does it say that the Assembly may elect
eight "large ship-owning nations". The text clearly stipulates that
of the fourteen IMCO Members to be elected to the Committee,
"not less than eight shall be the largest ship-owning nations". As
the Committee responsible for the development of the draft of the
IMCO Convention stated in 1946, this langnage meant that the
Maritime Safety Committee "will include the largest ship-owning WRITTEN STATEXEXT OF THE UXITED STATES OF AhIERICA 131

nations", a matter deemed "of great importance to its successful
operation"'.
As stated above in Section 1, the United States has maintained

consistently as a matter of principle, without reference to any
specific State or States, that the phrase, "the largest ship-owning
nations" lin Article 28, can only mean those IMCOMember nations
with the largcst tot:il rt:gisterc<lt~iiiii:igc~~ ilfnps Ilyingthe respecti\.e

facs of each of the eiclit ~o\~ernnicnts. Ir I.;L:~I\\.:i\the nçsiirnntion
inThe negotiations zf the IMCO Convention, biginning witA the
United Maritime Consultative Council of October. 1946, that the
term "ship-owning nations", in, the provision relating to the

composition of the Maritime Safety Committee, meant nationsunder
whose flags ships are registered.
That the phrase "ship-owning nations" is andhas been commonly
understood in maritime circlesto refer to nations offlagof registered

tonnage is shown by the Lloyd's Register for 1948, when the Con-
vention wasfinally negotiated;and by the Lloyd's Register for 1958,
on the basis of which the election of the first eight blembers of the
Maritime Safety Committee \\,as conducted. The first of the tables

in Section 5, Statistical Tables for 1948, of Lloyd's Register of
Shipping is entitled "TABLE No. 1.-Showing Number, Gross
Tonnage, and Material of the Vessels, of xoo Tons and upwards,
distinguishing Steamers, Motorships and Sailing Vessels, BELONGING

TO the several Countries of the World, as recorded in the 1948-1949
edition of Lloyd's Register 13ook." Likewise, the names of the
several countries are listed in the left-hand column of that table
under the heading "COUNTRIE S HERE OWNED" and in the succeed-
ing columns the numbers and gross tonnage of vessels listed with

respect to each of the countries are the same as those of the vessels
registered under the flag of each of those countries. Likewise, in
Lloyd's Register of Shipping for 1958 the names of the several

The phrase ''the largest ship-owning nations" appeared first in Article VII,
Section 2, of the Draft Plan for an Inter-Governmental Maritime Consultative
Organiration, prepared in London. September 1946. in an English language text,
by the Committee on a Possible Constitutionloran Inter-Governmental Maritime
Organiration, appointed by the United Maritime Consultative Council. The first
sentence of Article VII, Section, of the Draft Plan read: "The Maritime Safety
Committee shall consist o12 Dlember Gavernments selected by the Aççembly from
the Governments of thoçe nations having an importantinterest in maritime safety
and owning substantial amaunts of merchant shipping. of which no less than nine
shall be the largest ship-oivning nations and the remainder shall beselecsodas
to ensure representation for the major geographical areas.''This Committee's
report contained the following comment on i\rticle VII, Sectio2:

"iz.The Maritime Safety Committee. as proposed, will include the largest
ship-owning nations. This is of great importance to its succesçful operation.
Provision is also made for representatioof other ship-owning nations from al1
parts of the world thua giving recognition to the world-wide interestin the
problcins involved."United Maritime Consultative Council. Washington. D.C.,
document UDlCC ziz.October 14. 1946,pp. 6. II.132 IVRITTEN STATE.MENT OF THE UNITED STATES OF AAIERICA

countries are listed under the heacling "COUNTRIES WHERE OWNED".
(Annexes II and III.)
Moreover, under Article I (b)of the Convention itself, a purpose
of IMCO is stated to be to promote "the freedom of shififiing of al1
fEagsto take part in international trade". (Unàerscore supplied.)
This obviously refers to the shipping of al1 "ship-owning nations".
Evidence of the contemporaneous understanding that the phrase
"ship-owning nations" meant flag nations, may also be fouud in the
Court's Judgment of Apnl gth, 1949, The Corfu Channel Case
(Merits). In concluding that the North Corfu Channel should be

considered an international bighway through which passage cannot
be prohibited by a coastal State in time of peace, the Court stated:
"It may be asked whether the test is to be foundin the volume of
traffic passing through the Strait or in its greater or lesser impor-
tance for international navigation. But in the opinion of the Court
the decisive criterion is rather its geographicalsituation asnnect-
ing two parts of the high seas and the fact of its being used for inter-
national navigation. Nor can it be decisive that this Strait is not a
iiccessary route betwecn two parts of the high seas, but only an
alternative passage between the Aegeau and the Adriatic Seas. It
has iievertheless been a useful route for international maritime
traffic. In thisrespect, the Agent ofunitcd KingdomGoveriiment
gave the Court the following information relating to the period
from April ist, 1936, to December 31st, 1937: 'The foliowing is the
total number of ships putting in at Port of Corfu after passing
through or just before passing through the Channel. During the
period ofone year nine months, thetotal number of ships was 2,884.
ThePagsoftheshipsareGreek,Italian,Roumanian,Yugoslau.French,
AlbalLianandBritish. Clearly, very small vessels are included. asthe
entrics forAlbanian vessels are high, and of course one vessel may
make sever;rl jourrieys, but 2,854 ships for a period of one year
iiine months is quite a large figure. These figures relate to vessels
visited by the Customs of Corfu and so do not include the large
niimber of vessels which went througli the Strait witbout calling
at Corfu at all.' There were also regular sailings through the Strait
by Greek vessels three times weekly, by a British ship fortnightly,
and by two Yugoslav vessels weekly and by tmo others fortnightly.
The Court is further informed that the British Xavy has regularly
used this Channel for eighty years or more, and that it has also
been used by the navies of other States." (Underscore supplied.)
(I.C.J. Reports1949, pp. 4,28, 29.)
It seems evident that "ship-owning nations" nieans nations of
flags of registered tonnage in view of the established rule of inter-
national law thatthe nation of the vessel's flag is the nation directly
interesteà in the safety of the vessel, and alone can impose and
enforce safety practices upon the vessel on the high seas.

The Court will recall that the Permanent Court of International
Justice Iiad occasion to consider the question of jurisdiction over
vessels in its Judgment No. g, The Case of the S.S. Lotus (P.C.I. J.,
Series A. No. IO). That case arose as a consequence of the collision IVRITTES STATENENT OF THE UNITED STATES OF A>lERICA 133

on the high seas between the French flag ship, S.S. Lotus, and the
Turkish flag ship, S.S. Boz-Kozwt, and the subsequent criminal
prosecution in a Turkish court of the watch officer, a French
citizen on board the Lotus. The Court, by a majority of seven to

five. rendered the iudrment that therc is no rule of international
law'by virtue of w'hich the penal cognizance of a collision at sea,
resulting in loss of life, belongs exclusively to the country of the
shipby or by means of which the wrong \vas done.
This judgment related therefore to the issue of concurrent
criminal jurisdiction over vessels on the high seas. In this connection,
however, the Court made certain observations \vhich are of signi-
ficance with respect to responsibility of States for maritime safety

practices:
"1.-The collision which occurred on riugust 2nd. 1926, hetween
the S.S. Lotus, flying the French flag, and the S.S. Boz-Kourt, flying
the Turkish flag, took place on the high seas: the territorial juris-
dictioii of any State other than France and Turkey thcrefore does
not enter into account '."
.......................

"It is certainly true that-apart fiom certain special cases which
are defined by international law-vessels on the high seas are sub-
ject to no authority except that of the State whose flag they fly. In
virtue of the principle of the freedom of the seas, that is to Say, the
absence of any territorial sovereignty upon the high seas, no State
may exerciseany kind of jurisdiction over foreign vessels %@on them.
Thus, ifa \var vessel, happening to be at the spot where a collision
occurs betwecn a vessel flying its flag and a foreign vessel, werc to
send on board the latter an officer to make iiivestigations or to
take evidence, such an act would undoubtedly be coiitrary to inter-
national law." (Underscore supplied.)

........................
"In support of the theory in accordancc with which criminal
jurisdiction in collision cases nould exclusively belong to the State
of the flagflown by the ship, it has been contended that it is a ques-
tion of the observance of the national regulations of each merchant
manne and that effective punishment docs not consist so much in
the infliction of some month's imprisonment upon the captain as
in the cancellation of his certificate as master, that is to Say, in
depriving him of the command of his ship.
In regard to this, the Court must observe that in the present case
a prosecution was instituted for an offence at criminal law and not

' See also TitiMus<a/ BiiotuCase (France and Great Iiritain), wheatribunal
of the Permanent Court oArl>itration stated the princilile"generallyspeaking
it belongs tevery so\.creign tu dccide to whom he ivill accord the right to flyhis
flag and to prescriùa the rules governing such grants, and whereas. therefore, the
granting of the French flagto suhjects of His Highness the Sultan of hluscat in
1905,fScott,HafucoCourtReports. pp. 95, 96.ce of the Sulta..."Award, Aug. 8.134 WRITTEN STATEDIENT OF THE UNITED STATES OF A31ERICA

for a breach of discipline. Neither the necessity of taking adminis-
trative regulations into account (even ignoring the circumstance
that it is a question of uniform regulations adopted by States as a
result of an international conference) nor the impossihility ofapply-
ing certain disciplinary penalties can prevent the application of
criminal law and of penal measures of repression.
The conclusion at which the Court has therefore arrived is that
the effect that criminal proceedings are exclusively within theses to
jurisdiction of the State whose flag is flown." (P.C.I.J., Series B.
No. IO,pp. 12, 25, 30.)

In view of the division of the Judges of the Court in this Judgment,
it is useful to consider the observations of the dissenting Judges.

In his dissenting opinion, Judge Loder stated:
"A mcrchanr sliip heing :icoin11li:ttir:ritity. orgaiiizd aiid subjçct
to discipliiic in coiiforniiry witli~.laivsanJ siibje<:tto the coritrol
of tlir Statr \vlioscflaitflics.aiid ha\.-iie "ee~ril to tlie nbsrncr of
al1territorial sovereiGty upOiithe high seas, it is only natural that
as far as concerns criminal law this eiitity should come under the
jurisdiction of that State. This applies nith especial force to the
case now before the Court. The accusation against Lieutenant
Demons is that whilst navigating his ship he gave an order for a
wrong manceuvre.
The rules for navigation which he was obliged to follow were
those contained in his national regulations. He was responsible to
his national authorities for the observance of these rules. It was
solely for these authorities to consider whether the officer had
observed these rules, whether he had done his duty, and, if not,
whether he had neglected their observance to sitch a degree as to
have incurred criminal responsibility." (Id., at p. 39.)

. Judge Weiss observed, in his dissenting opinion:

exceptions or restrictions imposed in theus, interest of the commonn
safetyofStates,they are subject to iio territorial authority. Since,
hoivever, it is impossible to allow free scope to all the enterprises
and attacks which might be undertaken against the persons and
property of those voyaging upoii the seas, it has appeared exped-
ient to extend to merchant vesselson the high seas the jurisdiction
of the authorities of the State whose flag they fly. These vesselsand
their crews are aiisi\rerable only to the law of the fiag,a situation
which is often descrihed by saying, with more or less accuracy, that
these vesselsconstitiite a detached and floating portion of the natio-
nal territory. The effect of this is to exclude, just as much as on
the national territory itself, and apart from certain exceptional
cases, the exercise of any jurisdiction other than that of the flag,
and in ~articular that of a foreien Dort ;rt ivhich a vesse1mav touch
after the commission of some 08effencoen the high seas. (~ule; drawn
up at The Hague bv the Iristitute of Interiiational Law in 1qo8.)" WRlïTEN STATEMEST OF THE UNITED STATES OF AhIERICA 135

Lord Finlay stated:
"Turkey's case is that the crime was committed in Turkish
territory, namely, on a Turkish ship on the high seas, and that the
Turkish Courts therefore have a territorial jurisdiction. A shipis a
movable chattel, it is not a place; when on a voyage it shifts its
place from day to day and from hour to hour, and when in dock
it is a chatte1 which happens at the tirne to be in a particular place.
The jurisdiction over crimes committed on a ship at sea is not of a
territorial nature at all. It depends upon the law which for conven-
ience aiid by commoIi consent is applied to the case of chattelç of
such a very special nature as ships. It appears to me to be impossible
with any reason to apply the principle of locality to the case of ships
coming into collision for thepurpose of ascertaining what court has
jurisdiction; that depends on the principles of maritime law. Crimi-
na1jurisdiction for negligence causing a collision is in the courts of
the country of the flag, provided that ifthe offender is of a natio-
nality different from that of his ship, the prosecution may alterna-
tively be in the courts of his own country." (Id., at p. 53.)
Judge Nyholm expressed the view that there was no "positively
established international law" with respect to jurisdiction in case

of a collision between two vessels of different nationalities. "Though
therefore Turkey's action in this case is not at the present time
justified inlaw, on the other hand it cannot be regarded as agressive
from a moral point of view." (Id., at p. 63.)
As noted above, Judge Moore concurred with the.majority of the
Court on the issue of concurrent criminal jurisdiction, though
dissenting with respect to the connection of the case with the
Turkish Penal Code. Attention is called to the following parts of
his opinion:

"4. In conformity with the principle of the equality of indepen-
dent States. al1nations have an equal ri~ht to the uninterrupted use
of the unappropriated parts of the ocein for their navigatron, and
no State is authorized to interferewith the navigation ofother States
on the high seas in the time of peace except in the case of piracy by
law of nations or in extraordinary cases of self-defence (Le Louis
(1817). z Dodson, 210, 243-244).
5. It is universally admitted that a ship on the Iiigh seas is, for
jurisdictional purposes, to be considered as a part of the territory
of the country to which it belongs; and there is nothing in the law
or in the reason of the thing to show that, in the case of injury to
life and property on board a ship on the high seas, the operation of
this principle differs from its operation on land.
The operation of the principle of absolute aiid exclusive juris-
diction on land does not preclude the piinishment by a State of an
act committed within its territory by a person nt the time corporeal-
ly present in another State. It may be said that there does not
exist today a law-governed State in the jurisprudence of which such
a right of punishment is not recognized. France, by her own Code,
asserts in general and indefinite terms the right to punish foreigners
who, oiitside France, commit offences against the 'safety' of the136 WRlTTEN STATEMENT OF THE UNITED ST.4TES OF AMERICA
French State. This claim might readily he found to go in practice

far heyond the jurisdictional limits of the claim of a country to
punish crimes perpetrated or consnmmated on board its ships on
the high seas hy persons not corporeally on board such sliips. More-
over, it is evident that, ifthe latter claim is not admitted, the prin-
ciple of territoriality. when applied to ships on the high seas, must
enure solely to the benefit of the ship by or by means of which the
crime iscommitted. and that. if the Court should sanctionthisview.
it JIO~viil). ~~oiillive ro rlivl~rii~ciplcof tcrrir(.rialit! a unr-si<Ic~<i
al1i111c;ttionh.ut \i.oiililimpose upoil it<>I)C~~IIIL.IIi~n 2 liin~tittio~i
to \i.liicl~iISii~t siiLjcct uii liii,l." (IInt [>y.Gi, ;..,

Finally, in his dissenting opinion, Judge Altamira made the
following pertinent observations:

"In spite of the differences in character which these ten cases
present from other points of vie-., it will be found that they al1
agree in that they invoke, or recognize (which is the same thing),
the prier or exclusive claim of the law of the flag as regards certain
acts done on board a ship. It is only forthis reason that they are
cited here; and the very diversity of the questions of jurisdiction
which they concern only serves to affirmthe importance of the
minciole which unites them. There are certairilv cases with a

Coiitrâry 1<1111cnc such as thta 13ruge or Il'<.sl-11,idr.rmjc,\nit (,f
al1tti<,sccitecl rhc nia.urii.. arc c~rtai~~l\.III:,\.YII~f hic 1pr111c11)l~
indicated above.
i.......................

In view of the foregoing, 1have a verystronghesitation to admit,
as a matter of course, and as subject to no douht, exceptions tothe
territorial principle (in the application ofthat principle to the present
case), exceptions which it issought, simply by the will of one State,
to extend beyond the limits of those hitherto expressly agreed to
in conventions, or tacitly established by means of the recurrence of
certain clearly defined and undisputed cases in the majority of
systems of municipal law." (Id., at pp. 97, 98.)

To sum up this most fundamental decision of the Permanent

Court of International Justice, it would seem that while the Judges
were divided 011 the issue of concurrent criminal jurisdiction in a
collision case involving vessels of different flags, al1 the Judges
recognized the basic principle of the jurisdiction of the law of the
flag State of registry regarding acts done on board a ship.
This principle is acknowledged in current conventions on

maritime mattersl. Thus, the Safety of Life at Sea Convention,
signed at London June 10, 1948, provides in Article II:

It is sîid that ArticlII of the Convention on the High Seas,Geneva, 1956.
will override the Judgment of the Court in the Lotus case when the Convention
enters intoforceHoxuever, even when ArticleII enters into force legally, the prim-
aryjurisdictionof the flag State wilborccognized. ArticleIIprovides:
"1. In the event of acollision orofany other incident of navigation con-
cerning a sbip on the high seas.involving the penal or disciplinarresponsi-
bility of the masteror ofany other person in the service of the ship, nopenal WRIïTEN STATEMENT OF THE UNITED STATES OF AMERICA
137
"The shios to which the oresent Convention aoolies are shios
. .
rcgislereil iii <otiiitric.; th? (;u\.L.riirnciitiuf \vliicli arc Coiitra~.ting
(;o\~t.riiiii~iiti.lii,l slripsregistzrçiIIItçrritt>ri~>to whirh tlir [ireScnt
Coi~vciitir>n is i~>irenrl~-~ -iliitlcr..\rticI~,.XII[."

Similarly, Regulation 2 of the Regulations appended to the
Convention contains the following definition:

"(b) 'Administration' means theGovernment of the country in
which the shipis registered."

The Load Line Convention, signed 'at London Jnly 5, 1930.

contains the following definitions:

"Article 3

Definitions

In this Convention, unless expressly provided otherwise-
(u) 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 country to which the ship belongs; ..."l
-
or disciplinary proceedings may be instituted against such persons except
before the judicial or administrative authorities either of the flag State or of
the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's certiflcate
or a ceitificate of cornpetence or license shall alone be competent, after due
legal process, tg pronounce the withdrawal of such certificates.even if the
holder is not a national of the State which issued them.

3. No amest or detention of the ship. even as a measure of investigation,
shall be ordered hy any authorities other than those of the flag State."
Also significant iç the following language in Article 6 of the Convention:
"1. Ships shall sail under the flag ofone State only and, save in exceptional

cases expressly provided for in international treaties orin these articles. shall
he subject to its exclusive jurisdiction on the high seas ..."
1 The Court may also be inteiçsted in examples of bilateral treaties. In the Treaty
of Friendship, Commerce and Navigation between the United States and the
Netherlands, signed at The Hague March 27,1956, Article XIX provides, in part:
"1. Veseels under the flag of either Party. and carrying the papers required
by its laws in proof of nationality, shall be deemed to be vessels of that
Party both on the high seas and within the ports, places and waters of the
other Party."

A similar provision appears in Article X of the Treaty of Friendship, Commerce
and Consular Rights betweeii the United States and Konvay, signed at Washington
June 5. 1928.
Article X reads:
"Article X. blerchant vessels and other privately owned vessels under the
flag of either of the High Contracting Parties,and carrying the papers required
by its national laws in proof of nationality shall, both within the territorial
waten of the other High Contracting Party and on the high seas, he deemed

to be the vessels of the Party whose flag is flown."
Provisions similar to those set forth above appear in treaties of friendship.
commerce and navigation and similar treaties which were signed on the dates TVRITTEK STATElr1Eh.T OR THE UNITED STATES OF AMERlCA
138
Also of interest in this connection are the observations contained
in leading international law commentaries.
Thus, the position of the United States as to juristliction over

merchant vessels was set forth in a communication of &1ay 19, 1914
from the Cauriselor of the Department of State ta the British
Ambassador, summanzed in Volume II, Hack\vorth, Digest of
Intcrwlional Law, 5 140. Tliis communication stated in part:

"Private vessels belonging to this country are deemed parts of
itsterritor),. They are accordingly regarded as siibject to the juris-
diction of this country, on the higti seas, and in foreign ports, even
though they admittedly are also temporarily subject generally to
the laws of such ports." (Id., at p. 209.)

This Digest also quotes from Xielsen's Report (1926). where a
special Anglo-American tribunal rendered an a\vartf in fâvor of
Great Britain against thc United States, as folloivs:
"It is a fundamental principle ofinternational maritime law that,

except by special convention or in time of war, interfcrence by a
cruiser witli a foreignvesselpursuing a lawfulavocation on the high
seas is unwarranted and illegirl,and constitutes a violation of the
sovereignty of the county whoseAagthe vesselAies." (Id., p. 664.)
The Digest also quotes from the: United States Supreme Court

decision, ~\lazJv. UnitedStdes 274U.S.501(xgz7), in part, usfollows:
"The high sea is common to al1nations and foreign to none; and
every nation having vessels there has power ta regulate them and
also to seizethem fora violation ofits laws ..." (Id., p. 665.)

11is hrought to the attention of the Court that the United States
Department of State, by its Foreign Service Regulâtions, has
instructed its officers, with regard to registry of ships, as follows:
~.
"1:nrier gcncral priiiciltlcs of iiiternntioiial and maritiinc I:iiv,
cririlesaiiilniisdcmr.;inor~.corniniitcd oii ;lie Iiiglt w:;isand oiit
the tc.rriî<8rialliiiiitsarivSr:itc.aic coeriiz3ble«nl:~iiitt,~.courts<>f
the country to which tlie>essel belong: For the Piirpose af prose-
cnting suchcrimes,the vesselmay be regarded as part ofthe country
of registry." (zz Cumulative Federal Register. Sectioii 83.7. 1958.)

The quoteù regnlation reflects the concept of the United States
Cioveniment that a ship's registry determiries the nation to which
itbelongs.

iodicated belorv and which continue in force betiveen the U.S. and the following
coustries, resl>ectively: China-November4, 1946(Art. XXI). Estonin-Uecern-
ber 23,1925(Art.X), Fcderal Republicof Gzrrnany-Octaber 29,1954 (Art. SIX),
Pinland-l'ebruary rj. rg34 (Act. SV). Grecce-Auguiit 3. i9jr (Art. XSI).
Honduras-Deceniber 7. r9z7(Art. X), Iran-August 15,r3j5(Art. S). Ireland-
aryu2.,996(Art. XIS). Japati-Apriiel2.u1953(Art. XIX). Korerr-Noveniberbr28,
1956 (Ad. XIX), Latvh-April ?o. r~zS (Art. Xi), Liberia-August S. 1938
(Art. XV), Xicarayua-January 21. igj6(Art. XI)(). Spain-July3,igoz(Art. XI).
Similar provisions elso nppeor in varloux trenties which are no longer iri force. under their flags vessels which are onlyin partthe property of their
citizens'..."

l'usageJiiAp;ivilloii national po~irIV;na\,irr'sde sommçrcc', :idopted
1>ytlie Iii~tiiiiof:Iiitcrnatioiial Law.''

"8 265. The safely of ?iavigatio~zclearly involves cornmonaction
l'r:ifticthe on thepartoftheleadiltgmaritime States,for if, forinstance,thevessels
Open Sea of oneState followed one set of r«les for the avoiding of collisio~zsand
the vesselsO/ anotlzerShte followed a different set of rules, the result
700uldbe cliaos.This coriznioractioiahas been achievedmainly by the
enactmerzlby the diferen1 marilime States of similar or identicnl
regnlations,and only 10a slight exleritby the making ofinternation~l
conventions..."(Underscore is supplied.)

It should he noted that this edition of this treatise appeared
contemuoraneouslv aith the United Nations Maritime Conference.
held at keneva from rg Fehruary to 6 March 1948, which formulated
the final text of the IMCO Convention. The statements quoted
ahove, it is submitted, represent the contemporaneous under-
standing of applicable principles of substantive international law
which the framers of the INCO Converitioii must havc had in mind.

A detailed discussion of suhstantivc law may also he found in
Hi6gins and Colombos, Thc Internaliottul Luw oj the Sen (second
reviscd edition, 1951) Thus, the treatise States:
Jurisdiction over Merchant Vessels on the High Scas.
''$ 243. Legal position of rnercharit vessels oii the high seas.-
The jurisdiction which a State inay LawfuUycxercise over vessels
flying its flag on the Iiigh seas is a jurisdiction over the persons and
property of its citizens; it is not a territorial jurisdictioii'. The
grounds on which this jurisdiction rests arise simply 'from the fact
that they arc property in a place where no local jurisdiction exists'.
It is necessary for many piirposes that jurisdiction over a vcssel
shall be vested in a specific State; it is natliral to concede a right
of jurisdiction to the owner of property until his claim as such is
opposed by a superior title on the part of someone else and 'no
right to jurisdiction over a vesse1 cari, within the range of the
purposes contemplatcd, be suyerior to that of the State owning
her'. "2

"1 Pearce Higgins, Le végimejuridiqlcedes navires de commerce,
Recueil, vol. 30 (1929p )p.. 12-76."
"a Hall, [>p.301-302; cf. Çniith, F. E. (Lord Birkenhead), Inter-
national Law, 6th ed., by R. Moelwyn-Hughes 1927), p. 133; Law-
rence, I>tternationalLuw (Winfield's edition), pp. 210-213.''

"g 29% lHcgulatir,iiof se;trli6c.- -\lnriiiii~cii;i~.ig.iiiuiiohviously
rcqtiircs fur ils eficiciithir it?safet). sliould tic scciircd. \i'e Iiav~.
secntliat ordcron I,oarda~iicrchaiit \.~.iscli, i~i~int;il)cttic disci- WRITTES STATEMENT OF THE UNITED STATES OF .&MERICI\ 141

pline enforced by the master exercising the power conferred on him
by the flag-State of the ship '.As regards freedom of navigation,
orderly movement is ensured by adherence to the rules of the road,
the lise and display of lights and signais and the observance of the
general regiilations in force for the prevention of collisions. There
have been attempts inmodem times to arrive at international agree-
ments for increasing the safety of life at sea, although from the
riiles dealing with collisions and salvage which may be said to form
a 'cornmonlawof the sca, adopted bythe common consent of States'.
This "common law' was hinding, not because it was imposed by
any superior Power, but because it had been generally accepted
as a rule of conduct. Whatever may have been its origin, whether
in the usagcs of navigation or in the ordinances of maritime States,
or in botli,it has become the Iaw of the sea onIy by the conciirrent
sanction of those who rnay be said to constitnte the shipping and
commercial world. As regards changes in these rules, they have been
accomplished by the concurrent assent, express or understood, of
maritime nations.

"1 See above, 5zj6."
"2 The Scotia, [1871] 14 Wallace 170."

D. The IMCO Conveittioiz shonld be interpreted and a9plied sa as
to giue effecl to ils purposes, and, specifically, sa as 10 enable
the Maritime Safety Committee to $er/orm ils fz6nctions effec-
tiuely. The exclzision of Liberia and Panama froin the Com-
mittee will frztstrate the primary pzhr$oseof the Convention, i.e.
the promotion of maritime safety.

In the Advisory Opinion of April xrth, 1949, Reparations for
Injztries Snfeved in the Sevoice of the United Nations, the Court, in
concluding that the United Nations had a necessarily implied
capacity to bring an international claim to obtain reparation in
connection with injuries suffered by a United Nations agent in the
service of the United ldations, made the following pertinent
observations:

"The si~bjectsof law in any legal systern arenot necessarily iden-
tical in their iiature or in the extent of their rights, and their nature
depends iipon the needs of the community. Throughout its history,
the develoi>ment of international law has been inflnenced bv the,
rciluir~.ii>i:iitsof intcrnûtioiIift:niid iliiyrogreiiit.~ iiicreaseIII
ilic collc.cti\.e:isrivitiéi of St;iiei hns alrrndy givciituiinstances
of action iii>onthe international i la nebv cërcain entities which are
not states: This development cilminatéd in the establishment in
June 194j of an international organization whose purposes and
principles are specified in the Charter ofthe United Nations. Bzitto
pensable."s(Underscore supplied.)of internationalpersonalityis indis-

. . . . . . . . . . . . . . . . . . . . . . .142 WRITTES STATEMENT OF TH13 UNITED STATES OF ABIERICA

"In the opinion of the Court, the Organization was intended to
exercise and enjoy. and is in fact exercising and enjoying, functions
and rights whichcan only be explained on the basis of the possession
of a large measure of international personality and the capacity to
operate upon an international plane. It is at present the supreme
type of international organization, and it could not curry ozctthe
iiztentionsof its toundersif it was deuoidof internationalpersonality.
It must be acknowledged that its hiembers, I)y eiitrusting certain
functions toit, with the attendant duties and responsibilities. have
clothed it with the competence required to enablethosefttnctions to
beeffectivelydischarged."(Underscore siipplied.)
.......................

rights of the Organization comprises the right to hring the kind of
international claini described in the Request for this Opinion. That
is a claim against a Statc to obtain reparation in respect of the
damage caused by the iiijiiry of an agent of the Organization in the
course of the performance of Iiisduties. Whereas a State possesses
the totality of international rights and duties recognized hy inter-
national law, the rights and duties of an entity such as the Organi-
zation must depend upon its purposes and functions as specified or
implied in its constituent dociiments and developed in practice.
The functions of the Organization are of such a character thal they
could not be effectiuelydischargedif they involved the concurrent
action, on the international plane. of fifty-eight or more Foreign
Offices, and the Court concliides that the Members have endowed
the Organization with capacity to hring international claims when
necessitatedby the dischargeof its functions." (Underscoressupplied.)
(I.C.J. Reports1949, pl). 174178, 179, 180.),

In its Advisory Opinion No. 16, Interfiretation of the Greco-
Tztrkish Agreement of December rst, 1926, the Permanent Court of
International Justice was asked to construe the terms of an inter-
national agreement with respect to the functions of an international
body. The following observations of the Court in that proceeding
appear most relevant to the present case:

"AU the duties indicated above are entrusted to the Hixed Com-
mission as the sole authority for dealing with the exchange of popu-
lations, and special stress should be laid on the fact that these
diities have been entrusted to it with the object amongst others
of facilitating thiseschange. II follows that arcy inlerpretation or
measurecapableof impedingthe workoftheCommissiolcirzthisdomaiic
must be regardedas coiitraryto the spirit of the clausesprovidi~zgfor
the creationof this body. The Court has already adopted this stand-
point in its Advisory Opinion No. IO." (Underscore supplied.)
.......................

"The Court has already indicatcd thc spirit underlying al1 thc
international instruments coiicerning the exchange of Grcek and
Turkish populations, including the Fiiial Protocol of the Agreement
of Athens of December xst, 1926; it now observes that Article IV WRITTEN STATEMENT OF THE UNITED STATES OF ADIERICA
143
of this Protocol is undoubtedly itself'framed in the same spirit.
It follows,inthe opinion of the Court, that the restriction placed by

that article on the general powers of the Mixed Commissioncannot
constitute an impediment to the fulfilmentby the latter of the im-
portant duties assigned to it, but must beconstruedin such a way as
to accelerateand facilitatetheprogressmadeby that bodyzuithits work.
Speed must be regarded as an essential factor in the work of the
MixedCommission,both in the interest of the populationswith which
its work is concerned and in that of the Greek and Turkish Govern-

ments." (Underscore supplied.) (P.C.I.J., Series B. ;\'o. 16, pp. 18,
24.)

The present advisory proceeding, it is submitted, is comparable
to that in which the Council of the League of Nations requested the
Permanent Court of International Justice to give an advisory
opinion on the question: "Does the competence of the International

Labour Organisation extend to international regulation of the
conditions of labour of persons employed in agriculture?" In that
Opinion, Cornpetence of the International Labour Organisation with
respect to Agricultural Labour, the Court stated:

"In considering the question before the Court upon the language
of the Treatv. it is obvious that the Treatv must be read as a whole.
and thnt it;'tii~xiiric I> net to ht.ilcti.rriiiitcd riii.nly iipoii Inrti,.~ilar

IIII~A.,\~vl~ict.tf ~V~~~~I ILonIi [II,:~:oti[~st niay 1.c~~i[t!rl~tr,t-111
I I I I I I II.' l'..l.., r i 1, S. ill)9 ~j.,

Similarly, it is believed that in determiningwhether the Maritime
Safety Committee was established in accordance with the IMCO
Convention l, the Convention should be considered in its entirety.

' A useful description of the historical background of the lMCO Convention
may be found in the article, "The United Nations Maritime Conference". which
appears in the United Nations publication, "Transport and Communications
Review", Vol. I,No. r, July-September 1948, pages 17-21, inclusive. This article
points out that the establishment of IMCO marks the conclusion of a long period
of evolution towards intergovernmental cooperation in formulating uniforrn rules
for the regime of maritime navigation. Beginning with the establishment of the
non-governmental organization, the International Dlaritime Committee in 1897.
the article relates,tlie League of Nations erawas marked by the formulation of
such instruments as the Convention on the International Regime ofMaritime Ports
(1923). the Safety of Life at Sea Convention (1929). and the Load-Line Convention
(1930). After the Second \Vorld \Var, this article observes, there came to be felt
need for a permanent international organiration ivithin which Governments inter-
estcd in shipping matters might consult each other. The article states specifically:
"hIoreover, there was a need for ahigher degree of coordination on the international
Level nat only between Governmrnts but between the various techniques and the
transport systenis utilieing them, particularlyin view of the development of tlie
moçt recent techniques which are used by more than one transport system. In
particular.the Second World War çtimulated progress considerably in such fields
as radio aids to navigation and metcorology. which are of vital interest to aviation
and other activities ai well as shipping." (P. 19.)After summarizing the decisions
of the Maritime Conference, the article concludes:

"By establishing theInter-governmental hIaritimeOrganization the Maritime
Conference filleda gapinasphere of particular importance-for world activities.
Henceforth, Governments will have at thoir disposal a centralorgan in which WRITTEN STATEMEXT OF THE UNITED STATES OF AhIERICA
144
In addition to Article 28 of the Convention, which provides speci-
ficaily for the composition of the Committee, the Court's attention

is invited particularly to Article r, Article 3, Article 12, Article 16,
Article 17, Article 22, Article 29, Article 30, Article 41, Article 42,
and Article 60. In the view of the United States, al1of these articles
are relevant in determining the meaning of the Convention with
respect to the composition of the Maritime Safety Committee.

Article I

The first Article of the Convention sets forth the various purposes
of the Oreanization: and. it is most sienificant that subsection /a)
sets forthDasthe primary'purpose of th: Organization: , ,

"to provide machinery for CO-operationamong Governments in the
field of governmental regulation and practiccs relating to technical
matters of al1kinds affectingshippingengagediniiiternational trade,
andto&ncoi6rageLhegenernl adoplionof the highestpracticablestandants
in mafters concerningniaritinle safeiy arideficiency of ~cavigation;"
(Underscoresupplied.)

Also pertinent is subsection (b :)
"to encouragethe removal of discriminatory actionand unnecessary
restrictions by Governments affecting shipping engaged in iiitcr-
national trade so as to promote the availability of shipping services
to the commerce of the world without discrimination; assistance
and encouragement giveii by a Governinent for the development

itself constitutc discrimination, provided thatecsuch assistance and

encouragement is not based on measures designed to rcstrict the
freedom ofship$ing of al1flagsto take part in international trade;"
(Underscoresupplied.)

Article 3

Article 3 provides for,the functions of the Organization, including
primarily the making of recommendations on various shipping
matters: the draftinc -f conventions or other suitable instriiments:
and providing machinery for consultation among I~icmbers

ide- and information. Being permanent. the organiratiwill mvkerformoreexchange
continuitv and srstem in the work of internatioregulation. which hashad
to beca&ied on hitherto by means of conferences callea at the request of either
of the Governments or of one of the many organizations concertkd with ship-
ping questions. Shippingwill be represented at the internatioLevel by a
competont organizutionwhich will share with other organizationsuch as
those concerncd with civil aviationtelecommunicatio& and meteorology.
in the study of common problems-and particularlof the capital problem of
safety. The advantages of the closer and more efficient co-operatiboth
possible at the initiative of the United Nations, will notmake themselves
felt:' (P21.) \VRITTES STATEAIEST 01.' THEUSITEI) STATES OF A\lERICA 145

Article 12

"The Organization shall consist of an Assembly, a Council, a
Maritime Safety Committee, and siich subsidiary organs as the
Organization may at any timc considcrnecessary; anda Secretariat."
According to this provision, the Maritime Safety Committee is a
principal and permanent organ of the Organization, as well as the
Assembly and the Council. This indicates the importance attached
to the Committee and to its work.

Article 16
This Article provides for the functions of the Assembly (which
according to Article 13 consists "of al1 hlcmbers"), and authorizes

the Assembly, among other thi~igs "to recommend to Members for
adoption regulations concerning maritime safety, or amendments
ta such regulations, which have been referred toit by the Maritime
Safety Committee through the Council". It is, of course, through
the adoption of such regulations by a hlember that they become
applicable to its flag vessels, and the basic purposes stated in
Article I (a) are thereby achieved.

Article 17

This Article provides that the Council of the Organization shall
consist of sixteen hlembers and shall have a balanced composition
between ship-providing and ship-using nations.

Article 22

"(a) Tlie Council shall receive the recommendations and reports
of the Maritime Safety Committee aiid shall transmit them to the
Assembly and, when the .4ssembly is not in session, to the Members
for information, together with the comments and recommendations
of the Council.
(b)Xlatters within the scope of Article 29 shall be considerecl by
the Coiincil only after obtaining the views of the Maritime Safety
Committee thereon."

Article 28

The text of Article 28 is quoted and discussed, su$ra, Section III,
C, pages 124-127, inclusive.

Article 29

"(a) Thc Alaritime Safety Committee shall have the duty of
considering any matter within the scope of the Organization and
concerned with aids to navigation. constn~ction and equipment of
vessels, manning from a safety standpoint, rules for the prevention
of collisions, handling of dangerous cargoes, maritime safety pro-
II cedures and requirements, hydrographic information, log-books and
navieational records. marine casualtv investieation. salvatre and
rescie, and any othe; matters directli affecting maritime safety.

(b) The Maritime Safety Committee shall provide machinery for
pcrforming any duties assigned to it by the Convention, or by the
Assembly, or anyduty witbin the scope of tbis Article which maybe
assigned to it by any other intergovernmental instrument.
(c) Having regard to the provisions of Part XII, the Maritime
Safety Conimittee shall have the duty of maintaining such close
relationship with other intergovemmental bodies concerned with
transport and communications as may further the object of the
Organization in promoting maritime safetyand facilitatc the coor-
cations and meteorology with respect to safety and rescue."ecommuni-

Article 30

"The Maritime Safety Committee, through the Council, shall:
(a) submit to tlie Assembly at its regular sessions proposals made
by Members for safety regulations or for amendments to cxisting
safety regulations, together with its comments or recommendations
thereon;
(b) report to the Assembly oii the work of the Naritirne Safety
Committee since the previous regular session of the Assembly."

Article 41

"(a) Subject to any agreement between the Organization and tlie
United Nations, the Assembly shall review and approve the budget
estimates.
(b) The Assembly shall apportion the expenses among tlie Mem-
bers in accordance with a scale to be fixed by it after consideration
of the proposals of the Council thereon."

Article 42

"Any Member which fails to discharge its financial obligation to
the Organization within one year from the date on which it is due,
Safety Committee unless the Assembly, at its discretion, waivesme
this provision."

In connection with Articles 41 and 42, attention is called to
Resolution A. 20 (1). "Apportionment of Expenses among Member
States", adopted by the IMCO Assembly on January 19, 1959.
Under this resolution, the Assembly ha assessed IMCO Members
primarily on the basis of their respective gross registered tonnages
as shown in the latest edition of Lloyd's Register of Shipping.
This scale of assessments greatly increases the percentage of

contributions of those IMCO Members Iiaving substantial registered
tonnage over what that percentage would be if based on an equal
sharing of expendlture by IMCO Members, or if based on the United \\'RITTEX STATEJIENT 01'THE UNITED STATES OF :\.\lERICA 147

Nations system of contribution. Thus, in the case of Liberia, whose
total budget assessment for the calendar year 1959 is $16,278.00,
$14,278.00 of this total is assessed on the basis of its gross registered
tonnage. Of Panama's budget assessment of $8,174.00, $6,174.00
is based on its gross registered tonnage. In the case of Norway's
budget assessment of .$15,2g5.00, $13,295.00 is hased on registered
tonnage. $6.517.00 of the Netherlands' budget assessment of

$8,517.00 is based on registered tonnage. Of the United Kingdom
budget assessment of $32,738.00, $28,738.00 is based on its
registered tonnage; and of the United States budget assessment of
$46,252.00, $36,252.00 is based on registered tonnage.
Thus, the first IMCO Assembly has decided that the gross
registered tonnage of an lMCO >lember is the major factor to
consider in determining that Member's share of contribution to the
Organization. Under Article 42, of course, any Member which fails
to meet the assessment imposed by the Assembly within one year
may lose its voting rights in the principal organs of IMCO.

"The present Convention shall enter into forceon the date when
21States ofwhich 7 shall each have a total tonnage of not less than
~,ooo.ooogross tons of shipping, have become parties to the Con-
ventionin accordance with Article57."

The intent of this provision is evident. The framers of the Con-
vention did not consider that IMCO could operate effectively unless
States having an aggregate of at least 7,000,000gross tons of shipping
were Members of the Organization. In other words, the criterion of
tonnage was used as the essential condition for the verv existence
of IRICO.
There are attached, for the information of the Court, the notifi-

cation, by theUnitedNations, as depositary, of the entry into force
of the Convention (Annex IV) and a copy of the letter from the
Legal Counsel of the United Nations, Mr.Stavropoulos, dated IOAp-
ri1 1959. stating that the determination of the tonnage was made
on the basis of the Lloyd's Kegister. (Annex V.)

St~nzmaryof the IMCO Conuei~tion

To sum up, the Convention has established an international
maritime organization with a primary purpose "to encourage the
general adoption of the highest practicable standard in matters
concerning maritime safety and efficiency of navigation". ln order

to achieve this purpose, the Organization is authorized to make
recommendations, and to provide for the drafting of conventions,
agreements, or other suitable instruments. A Maritime Safety
Committee is established as a principal organ of the Organization,
and in addition to the Assembly, a body composed of al1Members,148 WRITTEN STATEhIEST OF THE USITEII S'l':\TEOF AIIERICA

and to the Coiincil, the executii-e body of the Organization. This
Maritime Safety Committee, to be composed of fourteen IMCO
Members with an important interest in maritime safety of which
pot less than eight shalf be the largest ship-owning nations, has the
duty of considering maritime safety matters, such as aids to navi-
gation, constriiction and equipment ofvessels, maniiing from asafety
standpoint, rules for the preventionof collisions, handling of danger-
ous cargoes, and maritime safety procedures and requirements.
In addition, the Maritime Safety Committee has the duty to main-
tain such close relationships with other appropriate intergovern-
mental bodies as may- further the object of the Organization in
promoting maritime safety and facilitate the coordination of

activities in the fields of shipping, aviation, telecommunications
and meteorology \rith respect to safety and rescue. The Maritime
Safety Committee is also directed to submit to the Assemhly,
through the Council, proposais made by Blembers for safety
regiilations or for amendments to existing safety regulations,
together \\rith its comments or recommendations thereon. The
Assembly is :ruthorized to recomniend such regulations and
amendments to the Members for adoption, and through their
adoption they become binding upon the flag vcssels of the respective
Members aiid the basic safetv aims of the Convention are accom-
plishcd.
It is thus apparent that the pro\~isioiis of Article 28, which
required the eight largest ship-oivning nations to be members of
the Maritime Safety Committee, were designcd to place on the
Committec nations \rith a very substantial aiiiount of tonnage so

that they miglit participate in the promotion and formiilation of
rules for safety at sea. These were nations that wre recognized by
the drafters of the convention as having an important interest in
maritime safety. They ivere in a position. through jurisdiction over
their flag vcssels, to take the necessary action with respect to a
substantial part of the \vorld's tonnage. Aii clection procedure
which disregardcd this basic concept of the convention and preventcd
the clection of two of the eight nations entitled to be members of
tliis Committee could only frustrate thc primary purpose of this
convention, i.e. the promotion of maritime safety.

IV. COSCLUSIONS

On the bais of the foregoing review of principles of lam and of
the facts, the follolving conclusions have beeii reziched.

A. In constituting the Maritime Safety Co~ilriiittee, the IMCO
Assembly nas bound to observe the criteria of Article 28 (a)of the
IMCO Convention, which required al1 fourteen of the Members to
he nations "having an important intercst in maritime safety", of
which "not lessthan eight shall be the largest ship-owiling nations".
Neverthcless, the election procedure followcd by the Assembly \VHITTEN STATEMENT OF THE UNITED ST.4TESOF A&IERIC:\ 149

manifestly ignored the explicit requirements of Article zS (a) in
that the voting procedure actually followed was to elect the first
eight IhICO hlembers receiving a majority of votes, withoiit regard
to the prescribed qualifications.

B. Liberia and Panama were qualified for the Maritime Safety
Committee from the standpoint of important interest in maritime
safety. The Convention recognizes that this intercst, which is a
requirement for al1 fourteen members of the Committee, exists in
the cight largest sliip-owning nations, which include Liberia and

Panama. Rloreovcr, as to Liberia and Panama, it has becn dcmon-
strated by thc admittcdly high standards maintained on the ships
under their flags, by tlieir participation in IMCO and desirc to serve
on the Committee, as wellas by their acceptance ofothersubstantive
international obligations, including those of the Load Linc Con-
vention, 1930 and the Safety of Life at Sea Convention, 1948. In
this respect, these t\vo IRlCO Members are at least on a par with
other IRlCO hlembers who were found qualified for membership
on the Committee.

C. Liberia and Panama were among "the eight largest ship-

owning nations" of the IMCO Blembers, and should therefore have
been included in the membership of the Maritime Safety Committee.
This conclusion is unavoidable on the basis of the listing on tlie
Lloyd's liegister. a standard reference for such questions and tlie
only list which \ras considered as evidence to determine "ship-
owning" in the Assembly's election of IMCO Members to the Com-
mittee. The listings of gross registered tonnages in Lloyd'swas the
basis on which "the largest ship-onning nations" should have been
determined, particularly as it was also used as the basis for the
entry into force of the Convention. Gross tonnage, as shown in the
latest edition of Lloyd's Register, was the principal basis for ;~sscss-
ment of IMCO Members. To deny the validity of the registration of

merchant shipping under a nation's flag as determining the shipping
of that nationis in fact to deny the sovereign right of a nation, under
international law, to grant its flag to merchant ships and to prescribe
the terms of rcgistration ofsuch ships under its flag.

D. The exclusion of Liberia and Panama from the Maritime
Safety Committee will frustrate the primary purpose of the IbICO
Convention, i.e. "to encourage the general adoption of the highest
practicable standards in matters conceming maritime safety and
efficiency of navigation". A particularly serious consequence of
this challenget6 the flags of these two IhlCO Members is that some
merchant fleets consisting of some ~j,ooo,ooo gross tons will be

deprived of representation on this Committee by their flag coiintries.
This will be entirely contrary to the intent of the framers of the
Convention, who, from the very beginning, considered the presence WRITTES STATEhlENT OF THE UNITED STATES OF AMERICA
150
of the largest ship-owning nations on the Committee to be "of great
importance to its successful operation." This is readily under-

standable, for only the nation of flag of registry can adopt and
enforce maritime safety regulations for a merchant ship.
It is therefore submitted that since Liberia and Panama were not
included in the membership of the Maritime Safety Committee,
this Committee was not constituted in accordance with the Con-
vention for the Establishment of the Organization. WRITTES STATEhlEST OF THE UKITED STATES OF AMERICA 151

DOCUMENTS OF THE UNITED MARITIME CONSULTATIVE
COUNCIL, WASHINGTON, D.C.

List of Documents1

Draft Agenda UMCC211,\rit11
Addendum 1, 2
and 3

Report on a possible World-Wide Intergovernmental UMCC 212'
Maritime Organization (Item I (a) of the Draft
Agenda)
Extracts from temporary Transport and Cornmuni- UMCC213
cations Commission. First Report submitted to the
Economic and Social Council 25th May 1946 (Item

I (bj of the Draft Agenda)
Recommendations of the United Maritime Executive UMCC214
Board to Contracting Governments, Fourth Session,
11th February 1946 (Item 2 of thc Draft Agenda)
Tcxt of Telegramreceived from the Secretary-General UMCC z/j

of United Nations (Item ~(b) of theDraft Agenda)
Resolution adopted by Economic and Social Council, UMCC 216
June 21, 1946. Temporary Transport and Communi-
cations Commission (Item I (bj of the Draft Agenda)
Shipping Co-Ordinating and Review Committee URICCz/8

Report on the work of the Committee June-septem-
ber 1946, for submission to United Maritime Consul-
tative Council
List of Members and Secretariat (Revised as of UMCC z/g
6:oo p.m., October 24)

Report of the Contributory Nations Committee UMCC 2/10
estahlished under UMEB 4/16 (Item z of the
Draft Agenda)
Review of the Progress made by the United States UMCC 2/11
in the Rcstoration of Normal processes in its Shipping

Order of the Day, Thursday, October 24 UMCC 2/12
Order of the Day, Friday, October 25 UMCC2/13
Minutes of the Opening Plcnary Session, Thursday, UMCC2/14,
October 24 with Addeodum

Note of the Swedish Government on the Prolongation UMCC 2/15
of United Maritime Consultative Council (Item I (6)
of the Agenda)

1 By agreement with theGouernrnentof the United Statof America,thrse
documents arenot rcproducedexcept the extracts set outpp. 153-16below.
See extracts app. r53-15below. \\'RITTES STATEDIENT OF THE UNITED STATES OF AAIERICA
152
Xotc of the Danish Goveriiineiit on the Prolongatioii UMCC2/16
of United Maritime Consiiltative Council Item I (c)
of the Agenda
Agenda (ReviseclOctober 24) UMCC2/17

Directory UhlCC2/18
Scandinavian Delegations' Substitute Proposal for UMCC2/19 and
Article 1, London Working Committee Draft (Item I 19 (Kevised)
(a) of the Agenda)

Aliniitesof Secoiid Meeting. Tliursday, October 24 UAICC 2/20. with
Addeiidiim and
corrigenda
United States Proposal for a Proposed Iriter-Govcrii- Uh1CC 2/21
mental Shipping Organization aloiig the lines of the
London \Varking Committee Draft (Item I ofAgenda)

Order of the Uay, Saturday, Octobcr 26 UhlCC 2/22
Indian Suhstitute Proposal for Article 1, Londoii UJICC 2/23
Workiiig Committee Draft (Iteiii I (a) of Agenda)
Iliniltes of Third Meeting. Friday, October 25 UJICC 2/24, with
Addeiidum and
corrigenda

Kevised List of JIembers and Secretariat UhlCC2/25
(Revised)
Order of the Day, Sunday, October 27 UhlCC2/26

Suggested Procedure for Establishing Permanent UJICC 2/27
Sliipping Organization
Aliiiiitesof Fourth hlecting, Friday, October 25 UbICC2/28, with
Addenduin I and
2 and corrigenda
Draft Convention for an Iiiter-Governmental Mari- UhlCC2/29. 29
time Consultative Organization (Kevised) and 29
(Final) 1

Minutes of Fifth Aleeting, Saturday, October 26 UAICC2/30. with
Addendum and
corrigenda
Order of the Day, Moiiday, October 28 UhICC2/31

Amendments submitted hy Indian Delegation to the UMCC2/32
Drafting Committee
United Kingdom Draft Reconiinendations Regarding UMCC2/33
Inter-GovernmeiitalConsultation onShippingMattcrs
alter October 31, 1946

>lemorandum of the Brazilian Delegation on the UAlCC2/34
Organization of a Specialized Agency to deal with
International Shipping

' See extract at pp155.~56klow. Fulltextreproduced indocumentEICONF.
4/i of the United Nations Alaritime Conference. WKITTEN STATEMENT OF THE UNITED STATZS OF AMERICA 153

Agreement for Provisional Maritime Consultative UXCC 2/35 and
Council 3j (Kevised) '
Order of the Day, Tuesday, October 29 UXCC 2/36
Order of the Day, Wednesday, October 30 UhlCC 2/37

Resolution of the United Maritime Coiisultativc UnlCC 2/38 aiid
Council, October 30, 1946 38 (Revised) '
Recommendations of the United Maritime Consul- UMCC2/39 and
tative Council to Member Governments 39 (Reviscd) '

Telegram from UMCCto Trygve Lie UMCC2/40 and
40 (Final)
Ifinutes of Sixth Meeting, IlondaS., October 28 UAICC2/41, with
Addendum
Minutes of Seventh Meeting, Tiiesday, October 29 UUCC 2/42, with

Addendiim
Minutes of Eiglith Meeting, Tuesday, October 29 UMCC2/43, with
Addendum and
corrigenda
Press Release-Second Session UMCC2/44

Chilean Memoranduin on Shippiiig l'olicies U~ICC 2/45
Ilinutes of Ninth Meeting, Wednesday, October 30 UhICC 2/46, with
Addenduni
Alinutes of Tenth and final Neeting, Wednesday, Oc- UMCC2/47

tober 30
New Zealand Governmerit's Views on Interim and UMCC2/48
Permanent Shipping Organization

Extracts from Documents filed as Annex I

UMCC 2/z
October 14, 1946.

REPORT ON A I'OSSIHLE WORLD-WIDE
INTEKGOVERSDIESTAL MARITII\IE OKGAIÏIZATIO'I

(For discussion in connection with ItemI (a) of the Draft Agenda)

COMMUXICATION FROM THE CHAIRMAN OF THE COMMITTEE TO THE
SECRETARY-GENERAL, NETHERLANDS MINISTRY OF SHIPPING

On behalf of the Committee appointed by the United Maritime
Consultative Council at its First Session in Amsterdam, 1 transmit
herewith, for submission to the Governments members of the United
Maritime Consultative Council, the Report of the Committee with ac-
companying draft Plan.

' Reproduced in document EjCOSF.q/i of theUnited NationsMaritime Con-
ference.
' Seeextracts at pp.~,+iGo beloiv.154 WRITTENSTATEYENT OF THE USITIII)STATESOF A3lERICh

The Committee which met in London in Jiily rg4Gwas coiiiposed as
f0llows:-

Monsieur A. van Campenhout (IJelgium)
Mr. A. L.Lam-es (Canada)
Xonsjeur F. Aiiduze-Faris (France)
Mr. J. J. Oyevaar (Xetherlands)

>Ir. F. Simonsen (Xorway)
Mr. Z. 1. Guzowski (Polaiid)
Mr. \\'.G. \Veston (United Kingdom)
&Ir.H. T. XIorse (United States)

At their meeting, the Committee agreed upon tlic drafts of their
Report and of the Plan. Since the11a few amendinents of a drafting
character, designed to emphasize or clarify certain passages in the
documents, have been proposed to the Chairman hy individual members
of the Committee. In exchange of correspondence it has been possible to
agree upon some of these which 1have incorporated in tlie texts accord-
ingly. The U.K. member proposed alternative drafts of certain sections
of Article VII, which have the concurrence of most of the memhers of
the Committee, but timehas not permitted the concurrence of al1 mem-
bers to be obtained. Thealternative<-lraftsarcshownintheaccompanying
copies of thedraft Plan. Certain othersmall points of plirasing suggested
by individual memhers of the Conimittee can be raised, if necessary,
when the Coiincil meets. Such minor questions of pliraseology apart,
the proposais in the Report and the draft Plan represent the ilnanimous
opinion of tlie Committee, and are siibmitted accordingly for cliscussion
by the Coiincilat the Washington session.

(Sig!&) W. G. \Viis~os,
Ctiairrnaii.
I.ondon, Septeinher 1946.

DRAFT PLAN FOI< AN ISTEI<-GOVERXMENT hlillTlhlE CONSULTATIVE
ORGANIZATION

Article VII. MarilinzeSafety Cortznzittee

Section 2. The hlaritime Safety Committee sliall consist of rz AIemher
Governments selected I>ythe Asseinbly from the Governments of tliose
nations havine an imuortant interest in maritinic safetv and owiiine
substantial amounts of merchant shipping, of wliich no less than niiie-
shall be the largest ship-owninp nations and the reniainder shall he
selected so as toensure ienresenfation for the maior eeoera~hical areas.
The Afaritime Safety cornkittee shaii Iiave I~o\\re;to>d;ist'thenitniber
of its memhers with the approval of the Coiiricil.No Cuverninent shall have more than one vote on the Committee but delegations may incliide
or be accompanied by advisors. IIembership of the Committee shall be
for a period of 4 years. Governments shall be eligible for re-election.

REPORT BY THE COMMITTEE OS A POSSIBLE CONSTITUTION FOR AN ISTEK-
GOVERNMEXTAL MARITIME ORGANIZATIOh'

Article VII, 12.The Maritime Safety Coininittee, as proposed, will
Section2. includethe largest ship-owning nations. Tliis is of great im-
portance to its successful operation. I'rovision is also made
for representation of other ship-owning nations from al1
parts of the world thus giving recogiiition to the world-
wide interest in the problems involved.
In this respect some of the members of the Committee felt
that representation on the Maritime Safety Committee
should be provided for nations with special iiiterests in the
manning of ships. The Committee decided not to.make any
specific provision of this kind, but it has been considered
appropriate to leave the Maritime Safety Committee with
po\ver to adjust the niimber of its meinbers with the ap-
proval of the Council.

UMCC2/29
(kiINA1.DOCUMENTI

October JO, 1946.
DRAFTCON\'ENTIOSFOR AS
INTER-GOVERNAlENTAM LARITIAIECONSUl.Tr\TI\rEOKGASIZATIOS

The Governments party to the present Conventioii licreby establish
the Inter-Go\lernmental Martime Consultative Organization (hereinafter
referred to as "the Organization").

PART1

Iiiter-GovenzmentalMarilime Consz~ltatiue rganizatio~r

[Article VII

Maritime Safety Comn~iltee

Seclion I.The Maritime Safety Committce shall consist of fourteen
Member Governments selected by the Asseiiibly froni the governments
of those nations having an important interest in maritime safety, of
which iiot Iessthan eight shall be the largest sliili-owning nations, and156 WRITTEN STATEYES1- OF TILE USITED STATES OF AAIERICA

the remainder shall be selected so as to ensure adequate rcprescntation
of othernations with important interests in maritime safety and of major
geographical areas. hfembership of the Committee shall be for a period
of years. Governments shall be eligible for re-election.

Section 2. Subject to the provisions of Section j of Article VI, the
committee shall have the duty ofconsidering any matter withiri the scope
of the Organization and coiicerned with aids to navigation, construction
and equipment of vessels, manning frorn a safety standpoint. rules for
the prevention of collisions, handling of- dangerous cargoes, maritime
safety procedures and requirements. hydrographie information, log-
books aiid navigational records, marine casualty investigation, salvage
and rescue. and anv other Inatters directlv affect in^maritime safetv.

These dutiés shall include the task of estabfishing w2kirig relationshiGs
with other inter-povernmental bodies concerned with transuort and
<i~iiiiiiiii~ic:~ri:Lj-II.:~! fiiitli<r rlolil~:t<if tli;orgniiiï,iriuiiiiiIlno-
inr,ting ,<ofry c,f Iifr.II+:a :.ilcl f:,ciIiiat~:tlcc,or~li~i;~~i<if~<cc~i\,ilir..
iiiIII, ti~lili <ii:Itiiiiiiric. .ivi;itioirtleciiii~iiiiiriiî;it~\virliri3siit:cr
to safetv and rescbê.The committee shall make reeular renorts toLthe
Coiincil'and make its recommendations in respect ofvall suc6 matters in
accordance with the procedure in Section 5 of Article VI.

Note: The foregoing sections of this Article arc teiitatively suggested,
since the scope and functions of the Maritime Safety Committee will
be developed on the hasis of the type of a draft convention emerging
from the contemplated technical conferences.]
. .
Note: >Iatter in brackets [ ] is reserved for further consideration.
......................... A

UMCC 2/41

October 29, 1946.
DRAFT &IIXIJTES SlXTH MEETING

A copy of the draft minutes of the Sixth Xeeting of the Council is
circulated herewith hy the Secretariat.

MIXUTES SIXTH MEETlKG OF THE COUNCIL HELD AT THE STATE DEPART-
MEKT BUILDING LOCATEDAT 1778 PENSSYLVANI.4 AVENUE, N.W., WASHING-

TON, D.c., AT 2:00 P.AI., OK MONDAY, OCTOBER 28, 1946

98. In regard to'Article VI1 (Maritime Safety Committee), Section I,
the meeting had before them an Indian alternative draft. Mr. Weston
informed the meeting that this alternative draft had the general support
of the Drafting Committee. The Drafting Committee, however, had not
felt empowered to substitute the lndian proposal for the original wording
becaiise it involved a matter of principle.158 \\'RITTES STATEIIEST OF THE UNITED STATES OF .AJIERICA

108. The Iitdia?r delegation had themselves considercd having the
total number of member governmeiits iri their alternative draft put at
fifteen instead of twelve, of which not lesshan eightgovernments would
be the largest ship-owning nations. Those figures, the Indiaii delegation
realized, woiild hardly have been acceptal~le to many other countrics.
and it was for that reason that the total of twelve and the ratio of seven
ta fivc was incliided in the Iiidian altcriiativc draft.

109. Havingreferredtothefootiioteof the present draft of Article VII,
Mr. Vcllodi thought it helpful to point outthat what was being considered
now \iras not so much the scope aiid fiinction of the Ahritirne Safety
Committee but tlic question of membership to which the footnote did not
refer.

XIO. Mr. Morse (United States) said that the figures to be used were
more or less unimportant to the United States delegation except, of
coiirse. for the nnderlying principlc wliich \irasgenerally accepted by al1
that the largest ship-omning nations shoiild be in predominance on the
alaritime Safety Committee.
III. Tlie chairman requested furthcr views on this matter, and
MY.Oyevaur of the Netberlands said that he had already signified agree-
ment with the lndian alteriiative draft biit now wondered whether it

might not be better to bring the total up froin twelve members to fifteen
and increase the number of largest shipowvning nations from seveii to
eight.
112. The chairman, at this jiincture, suggested it would be best to
vote first on the Indian amendment iinaltered and then on that amend-
ment with inclusion of the Danish figiires.

113. iMr. Simonsen remarked that lie was in favour of the Indian
amendment in regard to wording but would like to see the Ilanisli
figiires siibstitiited for the original figures of the Indiari delegation.
114. !MY.Vellodi (India) said that this would not be acceptable to
the Iiidian delegation while the Ilaiiisli delegation confirmed that tliey
woiild ngrec to tliat.

115. Tlie chairman then proceeded to obtain the vote of the nations
represeiited round the table on this matter and the consensus was as
follows:
116. Australia, MY. Faralrer,before giwzinghis opinion, said he would
wish to know what the composition of meetiiigs on questions of Maritime
Safety had been hitherto.

"7.Sir Cyril Hurcomb said that the last internatioiial gatheriiigon
thcse matters had been in 1929 and that, excluding the nations now
classified as "eiiemy countries", the convention had then been attended
by iiine ship-owning countries and five others. MY.Carter of the United
Kingdoin delcgation, could,no doubt, give some further information on
this point.
I18. MY.Carter confirmed the figiires as given by Sir Cyril Hurcomb,
csplaining that Germany, Italy and Japan had in 1929 also attended

the conventioii. That convention had since then been accepted by many
other countries. These acceptances, however, had attained a similar
ratio of representation by the ship-owning countries and other coun-
tries. IVRITTES ST.4TE3IEST OF THE USlTED STATES OF A.\fERICA 159
119. The cliairmaii thanked hlr. Carter for the information given, and
once inore requested Australia for their opinion as to which amendment
woiild be prcferahle.

a. Ir Farnker said tliat Australia was in favour of the Danish
prol)osal.
b. Hrazil stated to be in favour of tlie Daiiish . .oi>osal.

c. Helgizrm suggcstcd figures of 15 in total, of which9 were to be ship-
ownino ..tions. Otherwise, MY. Tussinrit preferrcd the 1)aiiish-.roi~osal.
d. Canadu prcferred the Danish proposai.
c. Chile preferred the Danish proposal.
f. Ilcnmark was recorded as preferring the Danish proliosal.

g. P.rrinceexpressed herself in favour of the lndian proposal.
h. Greece was in favour of the Danisli proposal.
i. Indin was recorded in favour of the Indian proliosal.
j. The Nelherlnnds.Mr. Oyevaar said he felt Iiimself in the difficult
position of havingtochoose between "two very goods things" andthought
that the best solution surely would be to reconcile the two views. It
should be possible to insert such figures in the lndian draft which would
make it acceptable both to the Indian delegation and the Danish dele-
gatioii, as well as to other governments represented. He wondcred
wliether the figuresof fifteen in total and eight as memhership for seafar-

iiig nations might not be suitable. In regard to tlie voting proccdure, he
adviscd that tlie Xetherlands would, in this matter, abstain from voting.
k. New Zealarid abstained from voting for the same reasoiis given by
>Ir. Oyevaar.
1.Norway dccided in favour of the Danish prol>osal,especially if the
total figiires siiggcstcd by the Danish delcgation for the member govern-
meiits of hlaritime Safety Committce coiild bc increased.

m. Polantl. Mr. Guzowski was in favour of the lndian proposal, but,
with hlr. Oyevaar, hoped and urged that miitiial agreement be reached
on tliis point.
n.SotrlkAfricn abstained from voting.
o. Swederr.Mr. Carlssoit expressed approvalof-the Danish amendment.
11.Sir Cyril Hzircomb said the United Kingdom delegation were in
lavour of the lndian proposa1 for the rcason that it kept tlie total number
of inembers lower with advantagesboth in cost and in efficiency, and also
becaiisc the ratio of seven to five appeared fairer within a total of tnelve

than the division providcd for by the Danish figiires. Although he too
considered that a cornpromise would he most dcsirahlc, he coiild not see
how tliis could very well be hoped for as Alr. Oyevaar had suggested.
If raised to the maxinium of fourteen, the meinbership might be divided
in the ratio of eight to six. Such a provision might insiire more adequate
weight for the larger ship-owning nations but, on the other hand, the
iricrease in incmhers from twelve to fourteen Sir Cyril Hurcomb did not
considcr desirable. Certainly, an increasc beyond foiirteen should, he
thought, iiot lie considered. Perhaps, Iic suggcstcd, it would be hetter
for the meeting to think over these points more clearly and in informai
disciission bctwcen members some happy soliition might be reached. He
proposed to keep the matter in abeyance.160 IVRIT~ES STATE.\IEST OF THE USITED STATES OF II~IEKICA

q. MY..Worse for the United Statessaid that he had not too strong ari
opinion on this matter eitlier way.
121. The cliairmaii siiggested that this matter be held in abeyaiice
and wondered whether Mr. Carter, as the United Kingdom expert, and
Captain Merrill as ail expert on the USA delegation, woiild lie availahle
to arrange for this matter to he disciissed informally with the represen-
tatives of Denmark and Iiidia heing present at the discussioiis.

122. The Indialr Deleplion wislicd to thank Sir Cyril for the lin<:he
had taken and the :idvice he had given the Council. The lndian delega-
tion went on to stress that it was the ratio that mattered to India, not
the total.

123. Mr. Koerbing (Ilenmark) hastened to point oiit that the matter
of voting power in tlie 1f:iritiine Safety Committee sliould not have so
much bearing on the ol~iiiion of the meeting as it alipeared to have.
Esperience had showii that al1 present at meetings conceriiing matters
of maritime safety were aiixious to secure the hest possible provisions
for safety at sea that were practicable. There never had been and, he
trusted, never ivould lie a real difference of opinion in this resliect. As
maritinle safety was a question of technical knowledge of the practical
oossibilities of the stei>s to 11eiindertaken to secure iiicreased safety, it

124. The Indian Delejiatio~iagain referred to thc iiitercst in safety
matters for nations wliicli did not have a Iarge ou,nershi[> intercst in
shipping.
~zj. The chairmaii proposcd that this question be decided in ail iii-

formal discussiori iiiider the giiidance MY.Carter ancl CaptriiltMerrill.
This was agreed iipoii.
126. In reply to a,qoestion by nlr.Gi~zowski, nlr.Morse stated that
Iiad a settlement in this matter heen forced hy voting, the United States
of America woiild have ahstained.

Addeiidiiiii to
UMCC2/41
October 30, 1946

MINUTES OF SIXTH MEETING

The Minutes of tlie Sixth Alceting were coiifirined iii the Ninth Meeting
held on \Irednesday, October 30. and mere originally circiilated as

uhfcc 2/41. !\'RITTEN ST.+TE\IEST OF THE UNITED STATES OF AMERICA
161
Amex II

LLOYD'S KEGISTEK OF SHIPPIXG. STATISTICAL TABLES 1948.
TABLE No. I

SHOWlKG NUMBEH ,ROSS TOKSAGE ,ND MATERIAL OF VESSELS OF 100
TONS AND UPWARDS, DISTINGUISHING STEAMERSM , OTORSHIPS A,KD
SAll.IKGVESSELS ,ELONGIKG TO THE SEVERAL COUNTRIES OF THE WORLD,
AS KECOHIIEI) IN THE 1948.1949 EDITION OF LLOYD'S REGISTEK BOOK

[hTotreproduced]

Annex III

LLOYD'S KEGISTER OF SHIPPING. STATISTICAI~TABLES 1958
TABLE I

MERCHANT FLEETS OP THE WOR1.D

(Nol reproducerEf

Annex I IJ
COXVEXTIOX OX THE IXTER-GOVEKNhlEXTAL AfARITIhLE

COXSULTATI\'E OKGANIZATION, DONE AT GEXEVA O;\'
6 MARCH 1948

ENTRY INTO FORCE
4 April 1958.
Sir,
1 am directed by the Secretary-General to refer to Article 60 of the
Coiiveiitiori or1the Inter-Governmental Maritime Consultative Organi-

zatioii, donc at Geneva, on 6 March 1948, which stipulates that "The
resent Convention shall enter into force on the date when twenty-one
tates, of which seveii shall each hava total tonnage of not less than
r,ooo,ooo gross tons of shipping, have become Parties tothe Convention
in accordance with Article 57".
1 have the honour to inform you that the conditions required by the
above-mentioned Article 60 having been fulfilled, the Convention came
into force on 17hlarch 1958.
A list of the States which have deposited instruments of acceptance
of the Convention is attached hereto for your information. The States
which each have a total tonnage of not less than ~,ooo,ooogross tons of
shipping are indicated by an asterisk on the attached list.
The present notification is made in accordance with Article 61 of the

Convention.
Accept, Sir, etc.
(Signed)Oscar SCHACHTER,
Director .of thc General Legal Division,
in charge of tlic Office of Legal Affairs.
Tlic Secretary of State
Department of State,
Washington 25, D.C.
-162 WRITTEN STATEMEST OF THE UNITEI) STATES OF AAIERICA

Date of deposit

State of the instrument
ofacceptance
"Argentins 18 June 1953
Australia 13 February 1952

Belgium g August 1951
The ratification is valid only for the metrapolitaii ter-
ritories:the territories of the Belgian Congo and the
Trust Territories of Ruanda-Urundi are expressly
exduded.

Burma 6 JU~Y 1951
'Canada 15 October 1948
Daminican Republic 25 August 1953

Ecuador IZ July 1956
(With iideclaration)
*France 9 April 1952
Haiti 23 ]une "353

Honduras 23 August 1954
Iran z January 1958
Ireland rG February 1951

lsrael 24 April 1952
*Italy 28 January 1957

*Japan 17 March 1958
JIexico 21 September 1954
(\Vith a reservation)
*Xetherlands 31 Jlarch i9+9
By a notification receirrd on 3 October 1949 notice was

given that the participation of the Ketherlands in this
Convention includes Indonesia, Surinam and the Sether-
lands West Indies.
By a further notification received on iz July 1951.
notice was given that the participation of the Sether-
lands in this Convention, {rom 27 Deceniber rgqg, no
longer incliides the territoriesunder the jurisdiction of
the Republic of Indonesia but includes Surinam. the
Netherlands Antilles (formerly the Setherlands \Test
Indies) and Netherlands New Guinea.

Snitzerland 20 July "355
(\Wh a reservation)
United Arab Republic ' 17 hlarch 1958
'United Kingdam of Great Hritain and Narthern Ireland 14 February 1949

*United States of America 17 August 1950
(\Vith a reservation)

* States which have a total tonnage of not less than r,ooo,ooo gross tons of
shipping.
1The United Arab Republic confirmed its acceptance of the Convention on
17 hlarch 1958. Egypt had deposited its instrument of acceptance on 5 April 1954.
Syria had informed of its acceptance of the Convention on 12 February 1958 but
had not deposited an instrument of acceptance to this effect. IO April 1959.

Dear Xlr. Bender,
1 wish to acknowledae the receivt of vour letter No. UN-qs611?s of
, ri ii,ji,,rliliiritin<\oiiii i1if8rni;~liciiii.t,ii<.<riiiiigIII,: tiitry iiitu

forc<:ofthc:i'o~.~iilioii o!lieIntcr-l;o\c.riini~~i!~\lnritiiiii~<oii~uli;iri\~r.
Organization.
In answer, 1 would like to indicate that the entry into force of the
Convention was notified by the Secretary-General to al1interested States
on 4 April 1958, by circuiar-ietter No. C.N. 59.1958. TREATIES-4,in
accordance with Article 61 of the Convention. By 17 March 1958, the
conditions required by Article 60 for the coming into force of the Con-
vention had heen fulfilled: namely, twenty-one States, of which seven
had a total tonnage of not less than r,ooo,ooo gross tons of shipping had
by that date become parties to the Convention, in accordance with its
relevant provisions. A list of the States Parties was attached to the
notification: the States which were deemed to havc a total tonnaee of
not less than ~,ooo,ooo gross tons of shipping were indicated h: an

asterisk on the list. The determination of the tonnage was made on the
basis of the Lloyd's Register, in consultation with the Chairman of the
Preparatory Committee of the Inter-Governmental Maritime Consultative
Organization.
In so far as concerns the requirement of Articlc 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 Kegister, should be altered for any reason bearing
upon the nature of the ownership of such tonnage.

Sincerely yours,

(Signed) Constantin A. STAVROPO~LOS,
Legal Counsel.

Xfr..&Ibert Bender, Jr.
.4dviser
United States Mission to the United Nations
2 Park Avenue,

New ~ork 16. N.Y.5. \VRITTEN STATEhIENT OF THE GO\'ERNhlENT OF THE

REPUBLIC OF CHINA

Novemher 17, 1959
Sir,
1have the honor to acknowledge receipt of the Deputy-Registrar's
letter No. 29465 dated April 9, 1959, and your letters No. 30095
dated August 5, 1959. and No. 30118 dated August 13, 1959, in the
matter of the Request for an Advisory Opinion of the International

Court of Justice concerning the constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative
Organization, and to submit to the Court the follo\ving written
statement :
"In the opinion of the Government of the Republic of China,
the Lloyd's Register of Shipping Statistical Tables can be
adopted as a basis in designating the eight 'largest ship-owning
nations' in accordance slth Article zS (a) of the Convention
of Inter-Governmental Maritime Consultative Organization.
The Government of the Republic of China further considers
that al1 ship-owning nations so designated are nations 'having

an important interest in maritime safety', within the meaiiing
of the said Article."
1 shall be much obliged if you will lay the ahove Statement of
my Government before the International Court of Justice.

Very tmly yours,

(Sigtzed)CHOWSHU-KAI,
Political Vice-Minister. 6. WRITTEN çTATEMENT OF THE REPUBLIC
OIT PANAMA

'Fovember 20,1959

Introduction

The Republic of Panama has the hoiior to submit to the Inter-
national Court of Justice thiswritteii statement in the matter of
the Advisory Opinion requested of the said Court concerning the
election of members of the Maritime Safety Committee of the Inter-
Governmental Maritime Consultative Organization (hereinafter
referred to as IMCO) which election was made by the General
Assembly of IMCO on the 15th day of January of 1959.
This Advisory Opinion has been requested by virtue of Resolution
adopted by the First Assembly of IMCO on January 19, 1959.
(Resolution .4.12 (I).)A copy ofsaid Resolution has been transmitted

to the Court bv the Secret~,v-General of IMCO. bv . , letter dated
March 23, 1959.
The International Coiirt of Justice, by Order of the jth of
August, 1959, has acknowledged that IRICO was established by a
Convention annexed to the Final Act of the United Nations
Maritime Conference signed at Geneva on March the 6th, 1948;
that on 'Fovember 18, 1948, the General Assembly of the United
Nations approved by Resoliition 204 (III) a draft Agreement
entered into between the Economic and Social Council and the
Preparatory Committee of IMCO; that Article 1X of the said
Agreement provides that IhlCO shall be authorized to request
adoisory opinions of the International Coiirt of Justice on legal
questions ansing %pithin the scope of its activities; that the con-
ditions laid down in Article 60 of the Convention under \\,hich
IMCO was established, relative to the entry into force of said
Convention mere satisfied on klarch the 17th. 1gj8; that on January
13. 1959, the First Assembly of IMCO approved the Agreement
on relationsliip with the United Nations which, pursuant to Article
XIX thereof, came into force oii that date;that, in accordancewith

Article 65, paragraph 2, of the Statute of the Court, al1documents
likely to throw light upon the question on which the advisory
opinion of the Court is requested shall accompany the request;
and that such documents were filed with the Registry of the Court
on July 27. 1959.
The request being, therefore, properly presented to the Inter-
national Court of Justice, the Court bas ordered that written
statements may be submitted not later than December 5,1959 by
any State entitled to appear before the Court or by any inter-
national organization considered as likely to be able to fumish
information on the question submitted to the Court.166 WRITTES STATEUENT OF THE REPUBLIC OF I'AS.4AI.A

The question submitted to the Court is the follo\ving:
"1s the Maritime Safety Committee of the Inter-Governmental
Maritime Consultatioe Organization,which waselected on the 15th
of January, rgjg, constituted in accordance with the Convention
for the establishment of the Organization?"

1. THEFACTS

The documeiits properly filed with the Court in connection
with the advisory opinion requested clearly show the following
pertinent facts:
I. That the First Assembly of IMCO met in London on January 6

of this year 1959. (IMCO./A./I.INF.I.)
z. That at the Sixth Meeting of tlie Assembly held on January 13,
1959 (IMCO/A.I./SR.6) the Assembly considered, as item II of its
agenda, the election of hfembers of the Maritime Safety Committee;
and that, on motion by the United States of America, the considera-
tion of this item was deferred until the next meetina. ..

3. l'ti;ttie rnatter of tlie elcctiuri uf s;iid \lcii~ftlic \larit iiiie
Saf~tv Corninitte,: \vas aoverric.dII\. rirticle 23 of Cvrivciitioii uiitler
\"hic6 IMCO was estabcshed, \\;hich Article reads as follows:
"(a) The hIaritime Safety Committee shall consist of fourteen
3femberselected by the Assembly fromthe >lembers,governments
of those nations having an important interest in maritime safety,
ofwhichnot lessthan eight shallbe the largest shipowning natioiis,
and the remainder shallbe elected soas to ensiireadeqiiate represen-
tation of Xembers, governments of other nations with an important
interest in maritime safety, such as nations interested in the supply
of large iiuinber of crews orin the carriage of large numbers of
bertlied and unberthed passengers, and of major geographical
areas."

4. That the Assembly did not proceed to elect at one time the
fourteen members aforementioned but chose, inste:id, to consider
the election of the first eight members and to elect afterwards the
remaining six members. (IMCO/A.I/SR.8.) And that this way of
proceeding was the result of a resolution introduced by the represen-
tative of the United Kingdom at the Seventh Meeting of the Assem-
bly, held on January 14, rgjg (IblCO/A.I. Working Paper 6) which
resolution reads as follows:

"The Assembly,
DESIRISG to elect the eight members of the Maritime Safety Com-
rnittee which shall be the largest ship-o\r7ningnations,
H,wrh-cTAKEN XOTEof the list prepared by tlie Secretary-General
(doc. I>ICO/A.I/\VorkingPaper 5) showing tlie registered tonnage
of each member of the Organization
RESOLVES

that a separate vote sliall be taken for each of the eight places
on the Committee; that the illemberof tlie Coriiiiiitteesliall be in the order in which the-nations appear in tlie Secretary-
General's list, and therefore those eight nations which first
receive a majority of votes in favour shall hc declared elected."
5. That the aforementioncd list prepared by the Secretary-
General (IMCO/A.I/ Working Paper 5) showing the registered
tonnage of each Member, reads as follows:

Merchant fleet of the IMCO members accordingto the
Lloyd Registerof ShiPPingSlalislical Table rgj8

I U.S.A. 25,589,596
2 Great Rritain and Northern Ireland 20,28j,776
3 Liberia
10,078,776
4 Norway 9.384330
5 Japan 5,465.442
6 Italy 4,899.640

7 Netherlands 4,599,758
S Panama 4,357,Soo
9 France 4,337,935
IO Germany 4,077,475
II Union of Soviet Socialist Repuhlics z,g6j,Srg
12 Greece 1,611,119
13 Canada
1,515,887
'4 Argentina 1,02S,585
(India) (673,675ï
15 Australia 631,240
16 Belgium 601.441
17 Turkey
595,625
18 China 539.530
'9 Honduras 338,170
20 Israel 20j,607
21 Alesico 162,399
22 Irish Repuhlic 136,923

23 Pakistan 12S,z63
24 Switzerland 97,745
No figures in statistical tables for the followingcountries:

25 Burma
26 Dominican Kepublic
27 Ecuador
28 Haiti
29 Iran

30 United Arah Republic168 WRITTES STATE&I.II;.NOF TUE KEI~UUI.IC OF PANAMA

6. That in arguing in favor of its resolution (mentioned under 4
above) the represeiitative of the United Kingdom of Great Hritain
and Northerii Ireland opened what may be termed as a direct
attack against the maritime position of Liberia anrl Panama
II\ICO/A.I/SR.7, page. 2). Special attention is given in this state-
ment of the Republic of Panama to the action of the United King-
dom's representative, because the record shows that he was the
leader of this attack and comparatively very little appears to have
been said by other members rvho voted with him.

7. That the representative of the United Kingdom, in stating
what \\,as the issue before the Assembly, said that "\\.bat the
Assembly had to do ws 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-owniiig nations". (IE1CO/A.I/
SR.7.) Tbat this position rirasstrongly opposed by the represent-
atives of Liberia and Panama who, as shall be further developed,
pointed out that therc reallp was no issue regarding the election of

the first eight members since the eight nations having the largest
registered tonnage were unquestionably the eight largcst ship-
owning nations, a position which was taken also by the represent-
ative of the United States of America. (IMCO/A.I./SK.7.)
8. That the record shows that the representative of the United
Kingdom, in taking the position above inentioned, pretended in
effect that he was not questioning the authority of the Rag of
those two countnes in determining the right to eligibilily to the

Committee as far as the first eight seats 'were conceriied. Never-
theless, the very language used by this rcpresentative shows that
he was, in fact, questioning the authority of such flags. He stated
that "there was clearly no question of dealing with the problem of
flags of convenience, which lay outside the Iimits of the discussion".
(IMCO/A.I./SK.7.) Howe\~er,the United Kingdom's representative,
both by language and by action, did question the authority of both
the flags of Panama and Liberia and took the lead in perpetrating
what Panama considers the violation of the flag of a sovereign
nation: and that such action was shared by the majority of the
Assembly, although such majority \vas a very narrow one.

g. That the record shows that, in this connection, the United
Kingdom's representative "emphasized that the expression (refer-
ring to the "eight largest ship-owning nations") \vas being used
for the first time, but it \vas perfectly clear. Vessels Iiad really to
belong to the countries in question, rizhich\iras obviouslq; not the
case with Panama and Liberia." (IMCO/A.I./SR.7.)
IO. That the Lloyd's Kegister List (quoted iinder nuinber j
above) was a list of tonnage registration accordiiig to the flag of
the respective nation, i.c. a list of ship-owning nations and not a

list of "ship-owning individuals or corporations". And, furthermore.
that it ws this same list which served as the basis for the clection \VHITTIJS ST.ATE3IEXTOF TH13 HEPUBI.ICOF P.AS.AYA 169

of each of the eight members that were first elected, without any
attempt being made to investigate whether the tonnage appearing
in said list was actually owned, in wbole or in part, by national
individuals or corporations of the respective nation in the name of
which the tonnage appeared as registered in the Lloyd's Register
of Shipping.

II. That at the same Seventh Meeting of the Assembly, held on
January 14, the representatives of Liberia and Panama strongly
opposed the approval of the United Kingdom's resolution. (IMCO/
A.I.ISR.7.) The Liberian representative indicated, as the record
shows, that "under the terms of Article 28, the Assembly had to
elect the eight largest ship-owning nations. But that was not an
electioniii the usual sense of the word, for, once those eight nations
had been determined, the Assembly was bound to elect them. Not
to accept thc list of those eight nations, which was drawn up in
application of a valid criterion, and to refuse to elect the countries
appearing in the list would constitute a breacli of the Convention."

rz. That the Liberian representative submitted an amendment
to the United Kingdom's resolution which amendment, in effect,
reflected the position of Liberia and Panama. (IMCO/A.I./\Vorking
Paper 8.)
13. That at this point the representative of the United States
offered a conciliatory amendment "to avoid a cleavage between

members of IMCOat the very outset of the Organization'sexistence",
which proposal called for the setting up of a provisional hlaritime
Safety Committee and to postpone the election of the permanent
Committee to its Second Session, in 1961. (IMCO/.4.l./Working
Paper 7.)In supportinghisproposal theUnitedStates representative
spoke against the United Kingdom resolution. He said: "ln regard
to the election of the fourteen members of the Maritime Safety
Committee, Article 28 stipulated that not less than eight of those
States should be the 'largest ship-owning iiations', and not 'large
ship-owning nations'." And he added: "lt \vastherefore unthinkable
that those eight States should have to stand as candidates. They
should be elected automatically. If the authors of Article 28 had
had in mind a free election and if the conditions stipulated in that
article had been merely the expression of a wish, itht be assumed

that Article zSwould not have been drawn up in compulsive terms."
(IhfCO/A.I/Sl<.7.)
14. That after discussion the United States arnendmeiit was
rejected by the majority, but the meeting adjourned without the
electionhaving taken place. (IMCOIA.I.ISR.7.)

15. That at the Eighth Meeting held the next day, January ïj,
Igj9, the discussion continued on the Liberian resolution, which
had been modified by virtue of a combination of the Liberian pro-
posa1with another amendment by the United States, which Liberia 170 RITT TES STATEZIEST OF THE REPUBLIC OF PASAMA

had accepted. This coiisolidated draft called, in cffect, for the
automatic election of the eight largest ship-owning nations according
to Lloyd's list. The consolidated United States-Liberia proposa1was
rejected by the majority of the Assembly. (IMCOIA.IISR.8.)
16. That the United Kingdom's resolution was put to a vote and
was approved by the majority. The election of members proceeded,
oneby one, on the basis of Lloyd's list.The United States of America,
first nation in Lloyd's list,as elected. Xext, the United Kingdom

of Great Britain and Northern Ireland, second nation in Lloyd's
list, \vas elected. Next, the election of Liberia, third nation in
Lloyd's list, was put to a vote, and Liberia was declarednot elected,
by the majority. Next, Norway, fourth nation in Lloyd's list, was
elected by the majority and through the same procedure, Japan,
Italy and the Xetherlands were elected. For the election of the
seventh member, the election of Panama was put to vote and
Panama was declared not elected by the majority, although Panama
was the eighth nation in Lloyd's list. For the election of the seventh
member, the election of France, ninth nation in Lloyd's list, was
effected. For the election of the eighth member, the election of the
Federal Republic of Germany, teiith nation in Lloyd's list, was put
to a vote and was elected by the majority. (IMCO/A.I./SR.R.)

17. That in this manner the election of the first eight members
of the Maritime Safety Committee was effected, and that Liberia
andpanamastrongly protestedagainst the electionfrom the moment
Liberia was improperly excluded. Panama and Liberia declared that
they considered the election invalid and would seek the submission
of the matter to the International Court of Justice. (IMCO/A.I./
SR.8.) It should be notcd, in passing, that this exclusion of Panama
and Liberia was made by a majority of fourteen members which,
.althoiigh a bare majority at the time of the election, was iiot even
at that time a majority of the IhfCO membership.

18. That at the Ninth Meeting of the Assembly, held the same
day, January Ij, 1959, in the afternoon, the Assembly proceeded
with the election of the remaining si.%members of the Committee.
This election \vas not a one-by-one election, but by means of nomina-
tions made of the varioiis candidates. And, on a joint election,
Argentina, Canada, Greece, Pakistan, the Unioii of Soviet Socialist
Republics and the United Arab Kepublic were electetl as the remain-
ing members. (IMCOIA.I.ISR.9.)
19. That Liberia and Panaina having announced their desire that

thematter of the validity of this election be submitted to the Inter-
national Court of Justice, and the majority of the Assembly being
in principle in agreement with such submission, thc drafting of the
necessary resolution was referred to the Legal Committee; and that,
after consideratioii by said Committee of various drafts of reso-
lutions, joint agreement finally came betureen the United Kingdom,
Panama, and Liberia on a proliosal by the represeiitative of Canada \\'RITTES STr\TE>lEST OF THE REPUBLIC OF P:\Sr\.\lA I7I

that the question to be submitted to the International Court of
Justice should be the following: "1s the hlaritime Safety Committee
of the Inter-Governmental Maritime Consultative Organization,
which was elected January 15, 1959, constituted in accordance \\rith
the Convention for the establishment of the Organization?"

The Legal Committee recommended this drafting of the question to
the Assembly and the Assembly approved it by resoliition (IMCO
/A.Iz(I)) on January 19, 1959.
20. That this last-mentioned resolution of the Assembly was
submitted to the International Court of Justice on hlarch 23, 1959.

II. THE ISSUE

The issue in this case is, purely and simply, the one expressed in
the question submitted to this Honorable High Court which question.
as aforesaid, is the following:

"1s the Maritime Safety Committee of the Inter-Goveriimental
Maritime Consultative Organization, which was elected January
15. 1959. constituted in accordance with the Convention for the
establishilient of the Organization?"

III. THELAW

The Republic of Panama respectfully asserts that the question
submitted to the International Court of Justice for an Advisory
Opinion should be answered in the negative, that is to Say, that the
Maritime Safety Committee was not constituted in accordance with

the Convention of IMCO.
The Republic of I'anama respectfully asks for this reply by the
Court because, as the Kepublic of Panama shall demonstrate
hereinaftcr :
A. The electioii was conducted in violation of the IhlCO Con-
vention and of well-k~iownprinciples of international la\\,.

B. The election was cond~icted in a manner that constituted a
violation of the sovereignty of the Republic of Panama.

A. A preliminary ?natter

Before proceeding to demonstrate these assertions, it seems
opportune to deal, as a preliminary proposition, with the matter of
the DroDer submission of tliis auestion to the International Court
of ~;st;ce.

Very littlc nceds to be said in this connection, since the IAICO
Assemblv 2as c~ ~e'se~~~-~ desire to submit this controvcrsv to the
Court, which fact indicatcs no doubt on.its part as to propriety of
submitting this questioii to the Court, nor has the Court itself
indicated that any such doubt may exist. The Court, by its Order
of August 5, 1959, has stated that this question has becn submitted172 IVRITTES STATEAIES'r OF THE REPUBLIC OF P.4S:\>IA

under Article IX of the Agreement entered into between the
Economic and Social Council of the United Nations and the Prepar-
atory Committee of IMCO, approved by the General Assembly of
the United Nations, whicli Article IX provides "tliat IMCO shall
be authorized to request advisory opinions of tlie International
Court of Justice 011legal questions arising within tlie scope of its
actirities".The matter of the alleged violation of the IMCO Con-
vention in the election of one of its most important organs is,
undouhtedly, a "legal question ansing within the scope of its
activities". .Article6 of the IhlCO Convention further corroborates
that al1questions of this nature "shall be submitted hy the Organ-
ization to the International Court of Justice for an advisory

opinion, in accordance with Article 96 of the Charter of the United
Nations".
It may be well to add that the International Court of Justice has
haci occasion to indicate, as the principal judicial orgaii of the
United Nations, that tlie interpretation of a multilateral treaty is
a function which falls within the normal exercise of its judicial
powers. Conditions of Adinissio?~of a State to Moitbership in the
United i\'ations, (Article 4 of the Charter), IJ.Reports 1947-1948.
p. 61; Cornpetenceof the General Assetilbly for the Adnzission of a
State tothe United ~Vations,I.C.J. Reports 1950, p. 6.The same view
was held by the Permanent Court of International Justice in
Designation of the Workers' Delegatefor the Netherlatrdsof the Third
Sessioit of the International Labonr Conference. P.C.I..I., Series B,
Xo. I; Free City of L)anzig and International Labour Organisation,

l'.G.I.J., Series B. No.18.

B. Violation O/ IMCO Convention and of fivinciples
of international law
I. Violation of Article 28 (a) of the IMCO Conuention

Which was the guiding rule that the Assemhly \vas bound to
follow in electing the first eight members of the Maritime Safety
Committee?
This guiding rule was a very simple one. It was contained in
Article 28, paragraph (a) of the INCO Convention, which is quoted
hereinbefore in the statement of "The Facts" (number 3). This
provision indicates in very plain language that "thc Maritime
Safety Committee shall consist of fourteen Afembers elected by the

.Assembly from the Members, governments of those nations having
an important interest in maritime safety, of which not lessthan eight
shall be the largest sltip-ownilzg natio?zs...".Çpecial attention is
called to the mandatory tense of the verb "slzall". This is an
imperative provision. No room is left for freedom or discretion in
selectiiig these first eight memhers. The eight largest ship-owning
nations automatically had to be elected. This the Assemhly was
boiind to do and it failed to do. U'RITTEX STATEMEI\"C OF THE REPURLIC OF PAXAMA 173

It is important to note that as regards the election of the
remaining sixmembers, the language of Article 28 is flexible, it
makes allowance for discretion and for the appreciation of certain
factors which are not susceptible of determination on an exact
hasis and which, therefore, would justify the process of judgment
and discretion. Such language reads:
,'..and the remainder shall be electcd so as to ensure adeqnate
reprcscntation of >lembers, governments of other nations with an
important interestin maritime safety, such as nations interested
in the supply of large number of crews or in the carriage of large
number of berthed or unherthed passengers, and of major geo-
graphical areas".
The difference in language between the first portion and the

second portion of Article 28 (a) is most significant and should have
been conclusive to the Assembly. As to the first eight members,
no discretion was allowed; as to the remaining six, discretion and
judgement were contemplated. When the majority of the Assembly
arrogated to itself the faculty of deciding on the hasis of criteria not
provided in the Convention, if and to what extent any of the eight
largest ship-owning nations had an important interest in maritime
safety, the .4ssembly vas exercising discretion in a field where
discretion had been excluded. The fact of helonging to the eiglit
largest ship-owning nations was, by the language of Article 28(a),
considered as a final and conclusive determination of the existence
of "an important interest in maritime safety". That is the reason
why no further explanation or detail and no indication of criteria
for determining "interest in maritime safety" is given as to the
first eight members. Ship-owning is the sole criterion. However,

as regards the remaining six members, the existence of an "important
interest in maritime safety" is defined by the words "such as
nations interested in the supply of large number of crews or in the
carriage of large number of berthed or unberthed passengers, and
of major geographical areas".
As the represetitatives of Liberia, Panaina and the United States
so well pointed out, the election of the eight largest ship-owning
nations should have been an automatic election, while the election
of the remaining six members called for a judicious estimate of the
various factorsor criteria indicated by Article 28 (a) as being deter-
minative of an "important interest in maritime safety". As the
United States representative explained at thc meeting, "it was
unthinkable that those eight States should have to stand as
candidates. They should be elected autoniatically. If the authors of

Article 28 had had in mind a free election and if the conditions
stipulated in that article had been merely the expression of a wish,
it might he assumed that Article 28 would not have been drawn in
compulsive terms."
And to this we add that if, as the United Kingdom and the
majority of the Assembly contended, the fact of being one of the174 WRITTEX STATEhlENT OF THE REPUBLIC OF P4YAMA

eight largest ship-owning nations \vas not conclusive of an interest
in maritime safety, and such interest had to be estirnated separately
and independently of such largest ship-o\+ning, then Article 28, to
be consistent in both its first and second parts, would have indicated
that the determination of such interest in maritirne safety, as far
as the first eight members were concemed, would depend upon a
specially defined criteria, as it wasne with regard to the election
of the remaining six members. But Article 28 did not provide such
specific criteria for the first eight members for the very reason
already stated, namely, that being the eight largest ship-owning
nations and being a member of IMCO was in itself conclusive as to

the existence of an important interest in maritime safety.
The Republic of Panama submits that when the Assembly under-
took, as it did, to deny to two of the nations which the Assembly
itself had admitted were among tlie eight largest ship-owning
nations, the membership in the Committee to which they were
entitled, and when the Assembly, in making such denial, undertook
to interpolate, so to speak, in10 Article 28 (a) certain criteria
regarding the first eight members, such as actual ownership of the
vessels, or the nationality of experts, etc., which critcria did not
appear in the said article but ha& been, on the contrary, exclnded
from said article, the Assembly violated Article 28 in failing to
observe a mandatory provision thereof and making an election
which was contrary to such mandate.
The fact that IMCO may be considered as a political body did not
excuse the Assembly from its obligation to obey the very Con-

vention nnder which it had been created and under which it had 10
proceed in effecting this election. In the Advisory Opinion rendered
by the International Court of Justice on May 28, 1948 (Cunditiofzs
oJAdmission of a State to Membership in the United Nations-Article
4 of the Charter, I.C.J. Reports 1947-1948) the Court held:
"The political cliaracter of an organ cannot release it from the
observaiice of treaty provisions established by the Chafter when
theyconstitute limitationson its powers orriteria for its ludgment.
Toascertain whether an organhas freedomofchoicefor its decisions,
reference must be made to the terms of its constituti..."
We submit that there is a marked analogy between the issue
confronted by the Court in the case just cited and that of the present
case. The question in the former case was whether, in deciding as to
the admission of a nation to membership in the United Nations, a
could make its vote for admission dependent upon conditions
State
not appearing in the United Nations Charter.
2. Contravention 01 principles 01treaty constrz~ctio?~

a. When the language is clear, it must be applieil according
ta its natural meaning
The Republic of Panama submits that the Assembly being, as it
was, bound by the terms of the IMCO Con\,ention, and having WRITTEX STATEMENT OF THE REPUBLIC OF PAKAMA 175

before it a clear provision, namely, Article 28 (a), indicating to it
the way to proceed, had no otber choice but to proceed with the
application of the rule binding upon it. And that, in order to do so,
the Assembly, being subservient to law, was obligated to follow
the two well-known rules of treaty and statutory interpretation and
application nhich may be stated as follows:

(1) \17henthe text of a treaty or statute is clear, unambiguous
and unequivocal, such text must be followed according to
its natural and usual meaning, and without it being
necessary to examine the treaty or statute in its entirety,
or to examine other extrinsic material connected with it,
for the purpose of ascertaining the spirit or the intent of
the particular provision involved: and

(2) If the language of a particular statutory or treaty provision
is not clear, or is ambiguous or equivocai, it becomes
necessary to consider the treaty or statute in its entirety,
as well as other extrinsic material connected with it, to
ascertain the spirit or thentent of the particular provision
involved.

The Kepublic of Panama submits that the Assembly of IMCO, in
proceeding with the election in question, failed to observe both of
the above-mentioned rules because (1)it failed to observe the plain
and natural meaning of a clear, unambiguous and unequivocal
treaty provision, and (2) even if it were to be deduced, from the
action of the Assembly, that it thought that the provision involved
was not clear, or that it was ambiguous or equivocal, the Assembly

failed to go into the consideration of the Convention as a whole, or
into considering other material connected with it, which would
have thrown light as to the spirit or intent of the provision
involved.
The Republic of Panama submits that the Assembly was faced
with the first of the two cases contemplated above, i.e. with a
treaty provision which was clear, unambiguous and unequivocal.
And it further submits that even if it were assumed,for the sake of
argument, that the provision was not clear or that it was ambiguous
or equivocai, the examination of the Convention in its entirety, as
well as that of extrinsic material connected with it, clearly shows

that the spirit or intent of the provision involved was and is that
the election of the Maritime Safety Committee should have been
conducted and effectuated with the inclusion of Panama and Liberia
as members thereof, these two nations being among the eight
largest ship-owning nations, and not, as the Assembly did, with the
exclusion of these two nations from a membership legally belonging
to them.
The above two rules of treaty and statutory construction are so
well-known as to be almost elementary. It would seem, therefore,
unnecessary to substantiate them by the citation of pertinent176 \\'RITTEK ST.~TEXEKT OF THE KEPUBLIC 01: I'ASAXIA

authorities. But in view of the seriousness of the action taken by
the Assembly and the gravity of the breach committed against
Panama and Liberia, the Repuhlic of Panama proceeds, at the risk
of dwelling upon the obvious, to cite pertinent authorities regarding
such rules.
In the Advisory Opinion rendered by the Permanent Court of

International Jiistice on September 15, 1923 (.4cg'11isitiO/Polish
Nationality, P.C.I.J. Series B, Xo. 7, p. 20) the question before the
Court was that of the interpretation of Article 4 of the Polish
Minorities Treaty under which Poland admitted and declared "to
be Polis11nationals ipso jacto and without the requireineiit of any
formality persons who were born in the said territory of ;barents
habitually resident there [underscoring ours], even if at the date of
the coming into force of the present treaty they are iiot themselves
habitually resident there". Poland contended that the habitua1
residence of the parents had to continue or be re-established at the

time the treaty came into force. The Court denied Poland's con-
tention. The Court stated:
"The Jlinorities Treaty (Article4, par.1)admits and declares to
be Polish nationals,i$so facto, personswho were born in the terri-
tory of the iierirState of parents habitiially resident there'. These
words refer to residence of, the parents at the time of the birth of
the childaiid at this time only."

And the Court added:
"The Conrt's task is clearly delined. Having before it a clause
whichleaves little to be desired in the nature ofclearness,it isbound
to apply this Clause as it stands, without considcring whcther
otlicr ~>rovisionsmight with advantage Iiavc been addcd to or
substituted for it. To impose an additionalcondition not provided
for iithe Treaty of June zsth, 1919, ~vou1~ he eqiiivalent not to
interpreting the Treaty, but to recoiistriicting it."

In the matter, cited ZL~su$ra, of the Advisory Opinion rendered
by the International Court of Justice regarding the interpretation
of Article.4 of the Charter of the United Nations (I.C.J. Refiorts

1947.r948, page 63), the Court said:
"To warrant an interpretatiori other tliaii that whichensuesfrom
the natural meaning of words, a decisive reasoii woiild he required
whichhas not been established."

As aforestated there is a marked analogy betnreen this case and
the one riorvhefore the Court. The question involved i\crçwhether a
State, in voting for the admission of a member to the United Xations,
could make itsvote dependent upon conditions iiot stipulated in the
Charter, a contention which the Court disavowed. Similarly, the
Assembly had no right to deny to Panama and Liberia the commit-
tee membership to which they were entitled by means of imposing
conditions for estahlishing an interest in maritime safety other than \\'RITTEX ST:\TEi\!EXT OF THE REPUBLIC OF PAS:\3!r\ 177
tlie only condition. of being one of the largest ship-o\vning nations.
which the convention contemplated.
In the matter of the Advisory Opinion rendered by the Permanent

Court of International Justice regarding Polish Postal Service in
Danzig, P.C.I.J. Series B, No. II, page 39, the questioii invol\led
was theinterpretation ofArticle 168, No. 1,of the Warsa\vAgreement
regarding postal rights as betmeen Poland and Danzig. Poland
contended that Danzig \vas obligated to complete the necessary
postal arrangements, while Danzig contended that the stipulations
involvcd only indicatcd a programme for negotiation. Thc Court
stated:

"lt is a cardinal principle of interpretation that words niust be
interpreted iiithe seiise which thcy woiild normally ti:iveiiitlieif
contest, unless such interpretation would lead to something iin-
reasonable or absord."

The Kepiiblic of Panaina submits that the application of the
principle of statutory or treaty construction above cited should have
compellcd the Assembly to apply the language of Article 28 (a) in
its natural meaning; that the language was so clear that, to quote
the Permanent Coiirt of International Justice in the I'olish !\'atio-
.nalilycaseaforementioned, theimposition of an additional condition,
as the niajority of the Assembly did impose, regarding the election
of Panama and Liberia, not provided in the treaty, \\,as "eqtiivalent
not to interfireliiig /lie Ireuty, but to reconstrztctingit".
It is opportune to note, in this connection, that the majority of
the Asscmbly, in denying to Panama and Liberia their rightful
seats in the Coinmittee, proceeded not only on the basis, utterly
improper, of imposing iin\varranted criteria for the determiriation
of the existence of ail important interest in maritime safety as to the
first eight inembers, biit the Assembly also proceeded on thc iin-

warranted and mrongful criterion that the detcrmination of what
constitiitecl a "ship-owning nation" could be made by means othcr
tkan the recognition of the flag which the vesselswere Rying, such
as considering the nationality of the private owners of said vessels,
or the nationality of the experts or expert organizations rendering
services to siich nations. The record sho\\rs that such improper,
unwarranted ancl mistaken criteria served as the basis for theaction
of the majority of the tlssembly. Although the majority members
did not esplain their votes, the proceedings make it apparent that
they were swayed by the improperly motivated criteria of the
leading sponsors of this attack against Panama and Liberia, iianiely
the United I<ingdom and the Norwegian representatives. Thiis, we
find as stated under number g ("The Facts") above, that the United
Kingdom's representative stated that "vessels had really to belong

to the countries in question, \\.hich \\.as obviously not the case with
Panama and Liberia", a position mhich he reiterated tlie day of
the election (IMCO/A.I/SR 8.,p. 3) when he stated that "for reasons
13 \\'RITTEX STATEblENT OF THE REPUBLIC OF PANA1I.i 179
actually having title or holding the fee simple over the property.
The expression refers to ownership in the political sense, that is,
of the State of the flag the vessel flies being the one entitled to

impose its laws and regulations on said vessel, under international
law, and to exercise exclusive jurisdiction over said vessel on the
high seas and even, to a great extent, while the vessel is within the
territorial waters of another State, as \ve shall hereinafter
demonstrate.
Anclsuch is the practice and the permanent usage in the maritime
wrld, particularly in dealing with safety inattcrs, because the
maritime world has no reason to be interested in private ownership,
\\,hich is of no legal consequence as far as the authority to impose
safety laws and regulations is concerned, but only in the political
authority and the jurisdictional power of the State of the flag to
enact and make effective such laws and regulations over the said
vessels. l'o the Assembly of IAfCO,supposed to have been primarily

interested in the effectiveness of safety measures, this interest in
dealing with States and not with private owners should have been
more apparent and not one to be ignored so lightly and capriciously.

ii. Nati~ralnzeaningas resulting /rom treaties
Xot only usage and constant practice had established the
aforementioned criterion as to "ship-owning nations", but specific
treaty provisions, ushich the Assembly \vas bound to respect, so
indicatcd. Thus, we find that in the Safety of Life at Sea Convention,
signed in 1929 and also on June 10, 1948. of which the IMCO
Members arc parties, and which is one of the vital instruments

govcrning the purposes and objectives of IMCO and of the Maritime
Safety Committee, it is provided, by Article II, that "the ships to
which the present Convention applies are ships registered in coun-
tries the Governments of which are Contracting Governments".
And in the Load Line Convention signed in London on July 5, 1930,
which is of similarly vital importance with regard to IbICO's
functions and objectives, it is provided by Article 3 (a):
"a ship isregarded as belongingto a coiintry if it isregistered by the
Government of that country".

That "ship-owning nations" means by general iisage and practice
nations under whose flag the tonnage is registered is also shown by
the decision of the International Court of Jostice in the Cor/u
ChannelCase (I.C.J. Reports 1949 p,p. 28, 29) where the Court, in
consiclering the passage of ships through the Channel, stated:

"l)iiririg the period of one year nine months. the total number of
ships was 2,884.Theflagsoftheships areGreeli,Ilalinn, Roumanian,
Yzrguslav,French,Albclnianand British."
And the record of the proceedings of the United Nations Maritime

Conference of February 19-blarch 6, 1948, held at Geneva,180 \\-KITTES STATE;IIEXT OF THE KEI'UBI.IG OF I'r\S:\>IA

wherein the IhICO Convention mas signed, clearly indicatcs that the
maritime nations were interested in Governments as political entities
having authority over ships under their flag, and not in the private
ownership of vcssels. i\io\vhere in thc proceedings is any mention
made of private oivnership, individual natioriality of experts, or
other similarly irrelevant matters.
As a mattcr of fact, the proceedings of the United Maritime
Conference of 1946, under urhich IMCO originatcd, show that,
pursuant to a proposa1 by the United States of America, which \vas
supported by the United Kingdom, it \vas decided to establish, in
addition to the Main Working Party, a Second \\'orking Party to

consider matters affecting maritimesafety. (E/CONF.4/2 7.)Panama
mas elected to the ahove Maritime Safety \Vorking Party (E/COXF.
4/SR/8) after a strong protest made by the Panamanian Delegate
\\,ho threatened to withdraw from the Conference. The Paiiamanian
Delcgatc emphasized that Panama ranked fifth in terfilsof tonnage,
and \vas situated at a meeting point of \r.orld shipping lines, andhad
a loiig-standing interest in international trade,aiid that, if Panama
\vas not added to the countries listed in suc11Party, it had no part
to play at the Conference (E/CONF./4/SR.Rcvised, p. jg). If
Panama \vas eligible for the Maritime Safcty \$'orking Party in
1948, and still in Igjg it ranked among the cight largest ship-
on~ningnations, why was it not eligihle iii 1959 to memhcrship in

the Maritime Safcty Committee?
iii.Absirrdily of criterion zrsedbytlte nzajorily of tIMCO
Assetnbly

The IMCO Assemhly was bouiid to follo\v the la\v of the flag in
determining the ranking of the first "eight largest ship-owning
nations", not only because such was the clear meaning of Article
2S (a), under which the election \vas being hcld arid because such
\vas the wll-scttled practice and usage aiid the governing rule of
trcaty la\v antl of international jorisprudcncc, hut also hecause
to adopt acliffcreiit criterion for establishiiig a "sliip-owriing iiation"
was conducive to an unreasonable and absurtl resiilt. as it has. in

fact, occurrcd.
The absurdity of choosing a different critcrion than that of flag
reuistration \vas verv well brouzht out in thc discussion bv the
reprcsentative of theUnited statgs (IblCO/A.I./SK.j). He expiained
very clearly that, if the right cnterion of tonnage registration under
the flag \vas iiot adopted, the other three possible criteria were the
follo\ving: the place of residence of the owniiig Company, the place
of o\viiership of the shareholders \vho were beiieficianes of the
ownership, or the actual ownership by the State (that is, o\vnership
in the civil scnse of being title-holder to the ship). The United
States representative said:

"The critcrion of the place of residcncc ofttiio\vniiigcoinpany
must be riiled out, since it was the State whoscflag the vesse1flew \\'RI'ITESSTATEIIEST OF THE REPUHI.IC OF PASAIIA 181

that was directly concernediii its safety, much more than thc Statc
in which the Companyhappened to be lcgallyconstituted. As to thc
criterion of thc place of residence of the shareholders, that also
the owriersliil)of joint stock conipaiiicsand because,moreovcr, thatg
interpretatiori\vas incompatible with the principles of Company
Law. Nor \irasownershipby the State (liereferred to actual owner-
ship, in the civil scnsc) a valid criterion since it woiild resiilt in
ruling oiit countrics like the Uiiitcd Kingdom, which \vas incon-
ceivable." (I>ICO/A.I./SR.7.)

But not only was it absurd and unreasonable to choose any of the

three criteria mcntioned. It also resulted in a rule of impossible
application arid one that would serve to create confusion and
divided authority in a field where iinity and close cooperation is
highly desirable. Dealing, as tlie Assembly was, with the consti-
tution ofan organ charged with serioiis responsabilities with regards
to maritime safety, the Assembly must have been keenly interested
in seeing that the largest representation was given to nations which,
by virtue of flag registration, were able to cnact and apply the
necessary safety laws and regulations iipoii their vessels. Otherwise,
whenever the nationality of the private o\oner of the vessel \vas
different from that of the vessel's flag, the membership of the
Cornrnittee would, according to the view of the majority of the
Assembly, bc designated according to the nationality of the
owner. And the result would be that with regard to the same
vessel, there would be one State having attained membership in

the Committec with no authority to act upon the ship and another
State with siich power to act, but without membership in the
Committee. No more absurd a situation can be foreseen. And if we
consider that, as is common in today's commercial and financial
world, the beneficial ownership of a ship is sometimes represented
by bearer shares, or is in the hands of trustees of various nationalities
and subject to mortgages also belonging to nationals of various
countries, and some of them frequently unknown, how far arc we
to go in investigating beneficial ownership? \Vhere \vil1the line of
demarcation be drawn? ...How far and ho\v often could the legal
urrong of "piercing the corporate veil" be perpetrated? ...4nd when,
after al], such beneficial ownership conld not be satisfactorily
establishcd, how would the seat in the Committee be assigned? ...
This serves to show that by, departing from the orthodox criterion,
as the Assembly majority did, it was establishing an absurd rule

and one of impossible application.
In the case of I'olislz I'ostal Service in Da~zzig(cited sufiru) the
Permanent Court of International Justice said: "It is a cardinal
pnnciple of interpretation that words must be interpreted in the
sense which they \vould normally have in their context, unless such
iiiterpretation would lead to something unreasonable or absurd."
\I'hat the majority of the Assembly did in this case was to reject162 \\.RITTES STATE3lEST OP THE REPUBLIC OF I':\S:\lI:\

the normal sense of the words in their context and to adopt the
interpretation "leading to something unreasonable and absurd". It
seems pertinent, in this connection, to cite the wcirds of the Per-
manent Court of International Justice in its Advisory Opinion
No. 16 (Interpretation of the Greco-Turkish Agreement of Decenzber
~st,1926, P.C.I. J. Series B, p.16) where the Court said:

"It followsthat any interpretation or measure capable of imped-
ing the work of the Commission inthis domain miist he regarded
as contras. to the spirit of the clauses proriding for the creation
of this body."

But more can be said regarding the absurdity of the criterion
followed by the majority of the Assembly. We can Say that it is
precisely due to the factor already mentioned, i.e. the fact that the
State whose flag the ship flies is the one invested witli authority to
enact laws and regulations and to exercise jurisdiction over the
vessel-that the largest representation was accorded by the Con-
vention on the basis of flag registration, while a smaller nuniber of
seats were accorded by reason of other factors, siich as nationalitp
of crews, fumishing of passcngers, etc. Thereis a perfect and simple
logic in this distribution. The Organization mnst give the greatest
opportunity and ability to act to those nations having the authority
to act over the largest number of vessels. Thus, \ve can conceive of a

State possessing the largestnumber ofseamen, orthelargest numberof
experts, or furnishing the largest number of passengers, and yet
such a State, although having undoubtedly an iniportant interest
in maritime safety, could do very little to enact and enforce the
necessary safety rules or rcgulations over ships which do iiot fly its
flag. This explains why the proportion of eight to six in the dis-
tribution of membership in the Committee was established by
Article 28.

iv. Natzrrnln~eani~ia gs resir.lkifroqit/~~.>zdaiireirpaliitci@les
O/inter~zationalluw

The principle that only the State whose flag the ship flies is the
one vested \vith the proper potver, autliority and jorisdiction over
the vesse1 is a well-settled and fiindamental principlc of inter-
national law.
The leading internatio~ial decision on the subjcct is, undoubtedly,
The Case of the S.S. Lotzis(P.C.I.J., Series A, No.IO). The case arose
as a consequence of the collision betiveen the S.S. Lotzls, flying the
French flag, and the S.S. Boz-Kourt, flying the Turkish flag. The

collision arose on the high seas. Turkey instituted criminal pro-
ceedings in a Turkish court agaiiist the \vatch officeron the "Lotus",
a French citizen. The question was whether the Turkish or the
French penal codes were applicable to the collision or whether
criminal jurisdiction was concurrent. The Court, in deciding what
virtually amounted to a recognition of concurreiit jurisdiction in \\'RITTEX STATEalEST OF THE REPUBLIC OF PASA31.4 1S3

case of collision on the high seas, went at great length in studying
the matter of jurisdiction over a vessel by the State whose flag the
vessel flies. The Court said:
"It is certainly true that-apartfrom certaiii special cases which
are defiiiedby international law-vessels on the high seas are subject
to no authority except that of the State whose flag they fly."

For the purposes of the present IMCO case, it is of practically no
importance that the opinions of the Judges in the Lotz~scase were
divided, as they were al1in agreement on the proposition for which
this case is now cited, that is, the jurisdiction and authority of the
State over a vessel flying its flag. (The division was only as to the
concurrence or degree of concurrence of such jurisdiction in cases
of collision on the high seas.) Therefore, it is in point to quote from
the dissenting opinion of Judge Loder the following:

"A merchant ship bcing a complete entity, organized and subject
to discipline in conformity with the laws and subject to the control
of the State whose flag it flies, and having regard to the absence of
al1territorial sovereignty ullon the high seas, it is only natural that
jurisdiction of the State."law this entity shoiild come iinder the

Judge Weiss stated:
"These vessels and their crews are answerableonly to the law of
theflag (underscoring ours), a situation which is oftcn descrihed by
saying, with more or less acciiracy, that these vessels constitute a
detached and floating portion of the national territory. The effect of
this is to exclude, just as mueh as on the national territory itself,
and apart from certain exceptional cases, the esercise of any juris-
diction other than that of the flag, and in particular that of a
foreign port, at which a vesse1may toiich aftcr the commission of
soine offense on the high seas."

Judge Moore, concurring with the majority, stated that "it is
universally admitted tliat a ship on the high seas is, for juris-
dictional purposes, to be considered as a part of the territory of the
the country to which it belongs".
We repeat that the entire Court concurred on the recognition, as
a principle of international law, of the jurisdiction of the law of
flag regarding acts done on board the ship.
In another international decision, the Muscat Dliows CaseAward.
Aiigust 6, 1905 ,cott, HngireCoi6rtReports, pp. 95, 96, a tribunal
of the Permanent Court of Arhitration, acting under a compromis

between Iirance and Great Rritain to decide difficolties arisen with
regard to the scope of a declaration of France and Great Britain
"ta engage reciprocally to respect the independence of His Highness
the Sultan of Muscat", had occasion to emphasize the law of the
flag, stating that "generally speaking it belongs to euery sovereig?i
nation to decide to whom it mil1accord theright to fly his flag and to
erescribe the rzrlesgouerningstcchgrants ...".184 \\'RITTES ST:\TEYEXT OF THE KEi'ULII.IC OFPhSAYh

\Ve should perhaps refrain froin citing decisions rendered by State
courts in recognition of this principle of international law and limit
our citations to international decisions. However, the attack against
Panama arid Liberia having been led by the United Kingdom's
representative, we cannot refrain from citing judiciai authority
from his own country. Thus, in ltegi~ta1,s. Leslie, Great Britain,
Court of Appeals (~Sbo),6 Cor's Crintirial Cases, p. 269, the Court
of Appeals sustaiiied the eon\~iction for false imprisonment against
the master of a British ship. The ship, while lying in Chile, under-
took to take the prosecutor and others rinder contract to England,
against their will, as they wcre heing deported, the prosecutor and
the others being Chilean nationals. The Court ruled that the action
may not have heen wrongfulwhile the ship waswithin Chilcaii waters,
but that it became unlawful once the ship was on the high seas.

The Court statcd:
"It is clear tliat an English ship on the high seas, out of ûny for-
eign territory, is subject to the laws of England, and persons,
whether foreignor English,on board siichshipare as mucliaiiieiiahle
to English law as they woiildhe on Eiiglish soil."

It is well known that the jurisdiction of theState of the flag over
the vessel flying such flag is so firmly established that it is iiot o~ily
applicable to the high seas, but it also estends, although not in the
same degree, while the vessel is lying at a foreign port. The aiithor-
ities are reviewed in Wildenh~rsC' ase, United States Supreme Court,
1887, 120 U.S. r. \Vildenhus, a Belgian member of the crew of
the Belgian steamer "Xoorland". was charged \\+th iiiflicting a
mortal \vound on a Belgian member of the crew, \\,hile the vessel

mas moored at a dock in Jersey City. The affray occurred in the
presence of other members of the crear. The Belgian Consul for
Xew York and Xew Jersey requested the surrender of the prisoner
from a Jersey City jail on the ground that he \vas triable rinder
Belgian la\\,. A writ of habeascorpus was denied the Consul, which
decision the Supreme Court of the United States affirmed. The
Supreme Court stated:

"The principle whichgoverns thc wholematter is this: Disorders
be dealt with exclusively by the sovereignty of the home of theto
ship, butthose which disturh the public peace may he siippressed,
aiid, if need he, the offenders punished by the proper authorities
of the localjurisdiction."

Practicallyal1of the well-known authoritieson international law
have uniformlv recornized. as a firrn vrincivle of international law.
the principle of theUso-calied "law d the flag", which the IMCO
Assembly majority violated by its action nou under judicial

scrutinp. The present statement of the Republic of Panama would
become unduly long if an eshausti\,e citation of such authorities is eveii attempted. \Ve shall, therefore, cite only some of the foremost
text-writers.
Heiiry Wheaton, in his "Elements ofIrtternutional Law", published
as onc of "The Classics of International Law" (No 19) in James
Brown Scott's Publications O/ the Carnegie Earlowrrte+tftor Inter-
notional Pence, page 142 (169). sec. 106. states:

"Hoth the public and private vessels of every nation, on the high
seas, and out of the territorial limits of any other State, are sul~ject
to the jurisdiction of the State to which they belong."

In Oppenheim's International Law, Vol. 1, lJeace (Seventh
Edition, 1948), it is stated:
"§ 260. Jurisdictioii oii ttic open sea iiithe iiiaiii coiinectedwith
the maritime flag under which a vesse1sails. This is the consequence
of the fact, stated above, that a certain legal order is created on the
open sea through the coo1)eration of riiles of the Law of Sations
with rules of the kluiiicipal I.aws of such States as possess a mari-
time flag."

And at section 261 it is statcd:
"III thc interest of order on the open sea, a vcsscl iiot sailing oridcr
tlie niaritime flag of a Strite cnjoys no protection wliatever, for the
frcedom of navigation oii the open sea is freedoin for silch vessels
only as sail under the flag of a State. But a Slale i*<.ibsolzrteiyde-
penderttin frniniifgtherztlesconcerniwg theclainr O/vesselsto its flag.
It can in particzrl~iir~zflhoriezrchvessels tosait under its flagas are
theproperty of foreigrzszrbjects;butSZLC~foreigrtvesselssailirtgzttlder
its flngfull therebyzcnrlerils jzrrisdiction."(Underscoring ours.)

In Green Haywood Hackworth's Digest O/ Interizutional Law
(1g41), \'ol. II, Chapter VI, a quotation is made from the reply from
the Counselor for the Department of State of the Uiiited States to
an inquiry by the British Ambassador made un hlarch 23, 1914.

Thc pertinent part of thc rcply reads as follows:
"Private vessels belonging to this country are deemed parts of its
territory. They are accordingly regarded as sobjcct to the juris-
diction of this country, on the high seas, and in foreign ports, even
though they admittedly are also temporarily siihject generally to
the laws of such ports."

Carlos Calvo in DerechoInternaciorzalTeorico y I'rncticodeEttropu
y Anlerica, ed. 1868, page 306, sec. 197, states:
,'Los buques de gucrra y mercantes en alta mar cstin sujetos
siempre que no se enciientren dentro de los limites jiirisdiccionales
de otra nacion, a la del Estado a que pertenecen. Vattel dice que los
biiqiies de una nacion ciiando navegan sobre iin mar libre, son como
porciones O pedaïos de su mismo territorio."

Daniel .Antokoletz in his Tratacio[leDerechoIirterrraciorraP l ziblico,
ed. 1944. Tomo III, page 22. states: "En el oceano no existe diferencia entre los buques de gucrra y los
huques mcrcantes en cuanto a jurisdiccion y competencia. Todos los
act~- ~~orden civil. comercia.~ ad~iiiistrativos.\,todos los delitos
o actos de indiscil>liriaqiie se cometan a bordo d'e'unhuque eii alta
niar, se rigeii por las leyes y estan soinetidos a la jurisdicciln del
13stadociiyo pabellbn enarbola t:biique."
In his Manual de DerechoInternncioi~alPiblico (ed. 1~4 Buerios
Aires, page 147) Dr. L. A. Podesta Costa states:

"Todo huqne, tanto pUhlico coino privado, esta sometido eri
~lrincipia la jurisdiccibn del Estado de su bandera. Esto significa
que el huque mismo, asi como las personas y las cosas a sii Ilordo,
estin regidos, eu principio, por las leyes del pabellon y soinetiaos
su aplicacioii por las autoridades competentes de ese Estado; y
pucdc ser responsabilizadoen ciertos casos por los hechos ilicitos qiie
el buque cometa."

Dr. Antonio Sanchez de Bustamanle y Sirven, in Manzral de
DerechoIttternacionalPziblico, qa. ed., 1947, La Habana, page 318,
states:

"El buque sigue siendo, cii agiias estranjeras, Io mismo cuando es
public0 que cuando es privado. iina parte del territorio del pals
cuyanacionalidad tiene y que continua ejerciendo sobre élun derecho
no intermitente de propiedad soberana. No se trata de una metafora
eiigaiiosa, sino de una realidad jiiridica."
We have demonstrated above tliat the usual and natural meaning
of the expression "eight largest ship-o\vning nations" is "the eight
nations with the largest tonnage registered under their flag"; that
such usual and natural meaning rcsulted from usage and practice

as well as from treaty law and international jurisprudence; that
the majority of the IMCO Assenibly failed to observe such usual
and natural meaning, and, instcad, chose an interpretatioii which
was uiircasonable and absurd, tlius violating well-settled legal
rules of statutory and treaty construction.

b. IVhen the langzrageis ambigtioris,fhe intent mnst be
ascertained
Let us non. go back to thc two riiles of statutory or treaty
construction enunciated by us heforc. \Ve stated as the first riile
that wheri the text of a treaty or statute is clear, unamhiguous or

unequivocal, such text must be follon~ed accordiiig to its natural
and iisiial meaning, and without it being necessary to examine the
treaty or statute in its entirety,orothcr extrinsic material conncctcd
with it, for the purpose of ascertaining the spirit or the intent of the
particular provision involved. \Ve have shown that in the preseiit
case the Assembly of IMCO \iras faced with language which \vas
clear,unamhigiious and unequi\rocal and, nevertheless, the Assembly
saw fit to disregard such language. \\'RITTES STr\TE>lEST OF THE REPUBI.IC OF PANA>I.A 1s7

We now undertake to show that the majority of the IhICO
Assembly exhibited, also, a total disregard of the second well-
known rule of statutory construction, which has been enunciated
as follows:
"(2) If the language of a particular treaty or statutory provisioii
is notclcar, or is arnbiguous or equivocal, it becomesnecessary to
considerthe treaty or statute in its cntircty, as wellas other extrirr-
sic rnatcrial connected with it to ascertain the spirit or the intciit
of the particular provision involved."

We have stated, in this connection, that if it \rrereto be dedoccd,
from the action of the Assembly majority, that it thought that the
provision involved \vas not clear, or \\.as ambiguous or equivocal,
the Assembly failed to go into the consideration of the Convention
as a whole, or into considering other material connected with it
which would have thrown light as to the spirit or intent of the
provision involved.
This assertion is substantiated by the record of the proceedings

of the IMCO 1959 Assembly which are before the Court. In the
scant debate held on the subject no mention or citation was made
by any of the speakers arguing against Liberia and Panama which
would indicate, even remotely, that the majority mas trying ta find
the intent or spirit of the provisioii involved. One cannot but be
left witli the clear impression, in reading this extraordinarily
concise statement of opposition io the rights of Liberia and Panama,
that this barc majority of the so-called traditional maritime nations
had a predeterinined decision to exclude Liberia and Panama ancl
was not particularly interested in listening to any meritorious
reasons which might have swayed them from such prejudiced
position.
And we Say this because it seems obvious, uncontroversial, that
such an esainination of the convention as a whole and of the other

material referred to, would necessarily have resulted in the majority
votingin favorof Liheriaand Panama,if an unbiaçed vote \vas being
cast.
Let us examine this aspect of the case.
In considering the matter of the Conzpeteizceof the Inter~zatio~ial
Labour Orgaitisalio?~regardiltg inter~iatio~rar legzrlationof the con-
ditions of iabozir of persans employed in agvicialture, the I'er-
manent Court of International Justice stated (P.C.I.J., Series B.,
No. 2,p. 23):
"ln corisideringthe qnestion before the Court upon the langiiage
of the Treaty. it isohvious that the Trcaty rnube read asa whole,
and that itseaningisnot ta be detcrrnined rnerely uponparticular
phrases iirhich,if detached frorn the context, rnbe interpretediri
rnorc thaii one sense."

In applying this rule of construction to the present case, the
Assembly should have given special consideration to Article 1,ISS \\.KITTES STATENEST OF THE REPUHI,IC OP k':\SA3I.A

Article 3, Article 12, Article 16, Article 29, Article 30, Article 41,
Article 42 and Article 60 of the Convention. All these articles throw
considerable light as to the meaning of the Convention with respect
to the composition of the Maritime Safety Committee.

ArticleI sets forth the purposes of the Organization. Subsection
(a), sets forth as the main purpose "to provide machinery for
cooperatioii :mong Governments in the field of governmental
regulation and practice relating to technical matters of al1kinds ...
rrizd10 eircozwagethe gexeral adoptioir of the highestfiracticnble
stnizrlnrdsirt ~izntlerscor~cerr~ifcfr~ariliinesafety and eficiency O/
iinvigntioit". (Underscoring ours.) It is obvioiis that this purpose
could oiily be properl~rachieved by giving the highest participation
in the Naritirne Çafety Committee to the largest ship-ojvning nations
on the hasis of the flag under which tonnage \\.asregistered, inas-
much as the law of the fag, as it has been pre\riously established,is
legal authority
the one that governs and determines the source of
and power to make effective such "general adoption of the highest
practicable staridards".
Subsection(6) of the same Article I iiidicatcs, as ariother important
purpose, "to encourage the removal of discriminatory action and
unneccssary restrictions affecting shipping engagcd in international
trade". By the saine token, only the Governinerits under nhose
flag the largest tonnage registration existed, have the legal power
and authority to remove such "discrimiiiatory action and unneces-
sary restrictions" as tothe largest tonnage iii trade. And it seems
opportune to ask: Howcan it be intelligently expected that t\vo of
the largest ship-o~vning nations, representing approximately

16,000,000 tons of shipping, should feel enthusiastic as to adopting
rules for the removal of such "discriminatioii" and "unnecessary
restrictions", when those two nations, by thc arbitrary action of
the majority, are beiiig made the victims of "discrimination" and
of the imposition of "unnecessary restrictions" as to their quali-
fication for meinbership in the Maritime Safety Cominittee?
Article 3 specifies the functions of the Organization for the
purpose of achieving the objectives previously mentioned. lt

indicates the important matters as to \\,hich the Organization
\vonld make recommendations (a). It provitles for the drafting of
con\,entions, agreements, etc. (b). It provides for the setting up of
a machinery for consultation among AIembers Governmeiits (c).
Article 12 designates the orgaiis of the Organization, of which
the Naritirne Safety Conimittee is a principal organ.
These two articles clearly sho\v the importance of the Maritime

Safety Committee and, we repeat, it should have been obvious to
the Assembly that only by according the largest represeiitation in
that Committee to the ship-o\rrning nations on the bais of the law
of the flag,could it be expected that such Committee should perforin
its most important functions. \VRITTES STATP;'.aIESOF THE KEI'UBLIC OF P:\Xz\>IA 1s9

Article16 indicates the functions of the Assembly. Paragraph (/)
deserves special mention. It authorizes the .Assembly "to vote the
budget and determine the financial arrangements of the Organi-
zation". Since the budget is to be determined mainly on the basis
of tonnageregistration under the flag (as indicatedby the Resolution
of the .Assembly under Articles 41 and 42, hereinafter mentioiied),
simple logic indicates that a corresponding voting power in impor-
tant Committees, such as the Maritime Safety Committee, should
also be based on flag registration of tonnage.
Paragraph (0 provides for recomrnendation to Meinbers to adopt
regulations concerning maritinle safety. \Ve Say, again, that the
law of the flag is the only proper one tonsure the effectiveadoption
of such regulations, and, conseqiiently, the propriety of such
recommendations.

Article 29 provides that the Maritime Safety Committee shall
have the dut): of considering matters concemed with aids to

navigation, construction and eqnipment of vessels, manning from
a safety standpoint, rules for the preventioii of collisions, haiidling
of dangerous cargoes, maritime safety procedures and requiremcnts,
etc. (paragraph (a)). Paragraph (b) stipulates that the Maritime
Safety Committee "shall provide machinery for performing any
duties assigned to it by the Convention or by the Assembly".
I'aragraph (c)provides that the Coinmittee shall have the duty of
maintaining close relations with other intergovernmental bodies.
Again, only those Governments having the proper authority and
jurisdiction, by reason of the la\r of the flag, over the largest
registered tonnage, coiild effecti\~ely enact and enforce those
measures, provide the stiyulated machinery and establish siich
relationship with iiitergovernmental bodies.

The same reasoning applies to Article 30 \\:hich indicates the man-
lier in which the Maritime Safety Committee shall submit proposals
to the Assemhly and report to it.

Articles 41 and 42 deal with the appro\ral of the budget and the
apportioningthereof, as wellas \vith the discharging by each Member
nation of its financial obligation. Asre\~iouslystated, in connectioii
with thesc Articles, the IMCO Assembly adopted its Resolution
No. zo on January 19, 1959 (lhlC0/.4.1. Resolution zo "Apportioii-
ment of Experises Among Memhers States") and such apportion-
ment was based chiefly on tonnage registration under the flag, and
not on the nationality of the private owners of vessels, or the na-
tionality of experts, or the like. The United States representative
brought this to the attention of the Asseinbly prior to the electioi!.

He pointed out the obvious logical correspondence between this
criterion of thela~vof the flag, as regarcls financial apportionment,
and the recognition of the same criterion for membership allocated
to the largest ship-owning nations.Such effort failed. The rnajority190 \VRIlTES ST.ATE3IEST OF THE REPUBLIC OF P.lSA\LA

of the Assembly was already determined to exclude two of the
largest sliip-owiiing nations.
Article 60 is most illuminating. It should be quoted in full:
"Article60. The present Convention shall enter into force on the
date when zr States ofwhich7shalleachhave a total tonnage ofnot
less than ~,ooo,ooogross tons of sliilq~ing,have become parties to
the Convention in accordancewith Article 57."

Tlius w see that on so important a matter as the fixing of the
date of eiitering into force of the Convention, no other criterion is
adopted than tonnage registration governed by the law of the flag.
No absurd thought came to the mind of the drafters of the Con-
vention such as the one that the nationality of the private owiiers
of the vessels, or the nationality of a given number of experts,
should be the criteria for determining when a sufficient number of
the maritime world was already committed so as to justify that the
Convention should start to operate.
The above summary examination of certain related articles of
the Convention clearly shows the intent that the law of the flag was
the criterion for determiniiig what a ship-owning nation was for the

purpose of the composition of the Maritime Safety Committee,
under Article 28. This examination the majority of the Assembly
failed to make and Panama must now, respectfully, ask the Inter-
national Court of Justice to makc it for the Assembly.
It follo\vs from the foregoing reasoning that the action of the
majority of the Assembly violated the Convention not only by
disregarding the clear mandate of Article 28,but also by disregarding
the evident meaning of such provision as resulting from the inter-
prctation of the Convention as wholc.

3. l->anan~a'isnterest in inaritime snfety

The Republic of Panama wishes, at this point, to state that
although it ws not necessary, for reasons previously explained, for
Panama to show evidence of its important interest in maritinle
safety as regards the election of the first eiglitmembers, the Republic
of Panaina, at the time of the election, and indeed at al1times, ha
consistently proved to have a very important interest in maritime
safety.
The Republic of Panama does not grant flag registration to
vessels in a capricious manner. Panama requires that vesscls
obtaining registration be properly surveyed and that their sea-
worthiness be determined by the highest specialists in the field,
namely, Lloyd's American Bureau of Sliipping or Bureau Veritas.
(Annex Il.)
Panama is a party (indeed one of the earliest parties) to the two

most important Conventions relative to maritime safety, i.e. the
Conventions for the Safety of Life at Sea (rgzg and 1948) and the
Load Line Convention (1930). (Annexes III, V and VI.) It is also \VRITTES STATEMEST OF THE REPUBI.IC OF PAS.AY:\ 191

a party to the Telecornrnunications and Radio Convention (1947).
(Annex \'II.) Panama is also an active member of the agreement
for Ice Patrol in the Xorth Atlantic (Annex VIII), and of the 1948
International Regulation for the Prevention of Collisions at Sea.
(Annex IV.)
Panama requires that al1 personnel working on vessels under
Panama flag be provided with a proper Qualification Certificate,
including the Captain, Engineer, Medical Officer, Officers, etc.
A separate certificate is required of seamen, i.c. persons not render-
ing technical services. (Annex II.)
When a reqiiest is made for registration under the Panamanian
flag the owner or agent for the vessel must submit to the Govern-

ment accurate information as to a) the actual and former owner-
ship of the vessel; b) kind of ship: steam, inotor, tanker, etc;
C) complete name and address of owner and its nationality, and, if
a corporation, the name and address ofthe President, Treasurer and
Secretary and their nationality; d) prior nationality of the ship;
e) gross and net tonnage and underdeck tonnage; 1) material of
liull; whether steel, iron, timber, cernent or mixed; g) kind of
apparel; Ig engine; whether stearn or motor, number of cylinders
and horsepo\ver, name of builder; i) admeasurement: length. width
and height; jl nurnber of bridges, decks, masts and chirnneys;
k) traffic or service to Ivhich it is dedicated; kind of freight,whether
general, dry or liquid; passenger transportation aucl number it can

carry and kind of accomodations; i) year and place of construction
and name of huilder; name and address of firm responsible for
radio bills;~rt)any other information for the complete identification
of the vessel.
It is also rcquired that the following documentation be presented:
I) Po\ver of attorney of the party requesting registration; z) Certi-
ficate showing that prior flag registration has been cancelled;
3) Title over the vessel; 4) Certificate of Admeasurement; 5) Inter-
national load line certificate; 6) Certificate as to the number of
passengers it may carry and the kind of accoinmodations thereof;
7) International Safety Radio-Telegraphy certificate under Safety
of Life at Sea Convention; S)Certificate of Sea\vorthiness (inspection

of boilers, engines, hull, etc;9) Sanitatioii certificate shouring good
hygienic and sanitary conditions; IO) liadio license request (must be
filleclby a radio technician or by the radio-operator). (Annexes II
and IX.)
As previoi~sly stated, the load-line certificates, the certificates as
to passengers which rnay be carried and accommodations therefor,
the international radio-telegraphy safety certificate and the
certificate of seaworthiness, must be issued by eitlier one of the
only authorities recognized by the Panama Government for that
purpose, who are: Lloyd's Register of Shipping, American Bureau
of Sliipping or Bureau Veritas, indeed the world's foremost author-
ities on the subject.192 \\'KITTEX STi\TEaII3KT01: THE KEPUBLIC 01' PAX.*.\I.A

And after al1 such proper documentation is presented, in good
and due form, only provisionalregistration isgranted for six months
which is later, iipon furthcr \rerification, converted iiito permanent
registration.
Satisfactory labor conditions on Panamanian ships are assured
by Panama's Labor Code, one of tlie most modern and inspired by
high standards of social justice. The pertinent provisions of the
Code, and related legislation may be seen iri i\nnex IX. Xaritime
workers are assured of advance iiotice, vacations, insurance of
vessels, proper compensation in case of injuries, medical assistance,
and al1 other proper guarantees.

The Republic of Panama can proudly assert that al1 necessary
conditions of safety and proper labor treatment are met in a
diligent and efficient manner by ships under its flag, and that,
therefore, this campaign against ships under Panama registry, of
which the preseiit election is only a part, does not seem in reality to
be dictatecl by any motive of safety or labor protection, but purely
as a matter of devions economic competition from certain groups of
maritime and labor interests. \Ire do not deny to such groups the
right to cndeavor to foster their interest, if they xvish to do so as
private institutions. But xvhen such pressures invade the field of
official international action, and it is done by States constituting
an internatioiial body, working under relationship with the United
Nations, and for the alleged purpose of seeking international

cooperation for the benefit of maritime trade and safety in general,
we submit that the matter becomes a ver: serious one, and that
this practice of malicious campaigning, of discriminatory and
arbitrary actioii, must cease, for the sake of the seriousness that such
international body must show to merit the respect and cooperatioii
of other Governments.
The fact that no true motives of improving maritime safety antl
trade seem to animate these campaigns against thc flags of Panama
and Liberia is very well illustrated by the follo\ring quotation from
the statement recently made hy Alr. \Valter L. Green, Chairman of
the Board of Managers of the American Burcaii of Shipping on
January 27, 1959. and macle public very soon after the election

now iinder review by this Court. A foremost authority as the
Chaiman of the Board of the American Bureau of Shipping stated
(Annex X) :

"'l'hereisin some quarters tlic belief tliat thc:fleets of Liberian
and Panamanian registry are comprised largcly of older ships sold
out from iinder thefag of original rcgistry as they are replaced by
ho\\.coinpletelyuiifouiidedarc nny such beliefinsofar as the ships
in Classwith tlie Riireaii are concerned. Of the 572 Liberian ships
totalling over 7,ooo,ooogross tons in Classwith the Kureaii, only
- 23,or :il,ou4 percent, totalliiig rSo,ooogross tons were built prior
to the \i'orlcl\Var II constriiction program. Of the 249 Panainaiiian \\'KIT'I'EX STATEZIEST OF THE REI'UBI.IC OF PASAMA 193

sliips totalling 2,4jo,ooo gross tons now in Class with tlie Biireaii,
only 32, or Iess than 13 per cent, totalling 223,ooo gross tons were
~~reu~ab riiilt. Of these ships, many were extensively altered and
modernized to suit them for their present services as a part of tlie
postwar reconstruction program.
In the Classed Liberian Fleet, zG3totalling 4,6jo,ooo gross toris,
which is 66 per cent of the total gross tonnage, and in the Classed
Panamanian fleet Gj totalling g40,oOogross tons, which is 38 per
cent of the total gross tonnage, are less thaii Ij years old. Of the
Liberian fleet, 201) totalling 3,Sjo.ooo gross tons, which is 55 per
cent of the total gross tonnage in Class, and of the Panamaniari
fleet 40 totalling j7j.000 gross tous, which is 23d per cent of the
total gross tonnage, are less than five years old.
Since the ships built during the \ilorld War II construction
urocrams still com~rise a substantial seenieiits of the fleets of manv

tion were not dlowed to suffer. Ijy and large, al1ofkhese ships were
biiilt to thethen highest standards of classification societies. As far
as thc ijostwar biiilt shivs are conceriied. al1those in Class with the
I3iirt.aiicoiifornln rllc ir:iiirl;irdiniiIZiilci.tlit I,i.iiig;idiiiiiiiî-
tcrcd iin1,:irii;~llyirri~sl~~~rtfcihf: lliof registry.Y'h?.; ?hrpsare
r?brr.sorlirlivtol /mas1 mudt~~r rrb-ro-datshrP.\Ii,bzrurtrriifrir~fwhzrp
in The Gouerilmeritsof Liberia alcd I'uizairm have entrz<stedto the
Bureau, among a lzzrinberof otlzerclirssificatiolzsocieties,not only the
inspections ct~stomavilycarried 0111to iiisure the mniizte~zanceireces-
sary to continue the Classificatiorcof the vessels, but, also, the added
inspectioi~srequired to assure complia?zcewifh the provisions of the
Internulional Load Line and the Snfety of Life ut Sen Conventions
toieihichthesenatioilsaresignnlory. [Underscoring ours.] The liureaii
is fiilly aware of the responsibilities entrusted to its Surveyors. Al1
inspections are being carricd oiit in a thoroiighly diligent manner
so as to satisfactorily discharge these responsibilities. In so far as
the sliips Classed with the Biireaii are concerned, tliere can he no
basis for considering these to I>esiibstandard."

4. The electiotcwas capriciozcs, discritrtiitatory atid arbitrary
We have stated before that the existenceof an "important interest
in maritime safety" was, by the terms of ilrticle 26, established

beforehand in a final and conclusive manner asto the eight largest
ship-owning nations, so that suc11 iiations wcre entitled to an
automatic election in the Committee, without the Assembly being
authorized to scrutinize the extent to which, in the individual
opinion of $lembers, any of such eight nations had displayed such
"interest" in maritime safety. And we have also stated that, even if
it were assumed, for the sake of argument, that the Assembly could
look into such matter, that did not give the Assembly the right to
exercise its discretion capriciously or arbitrarily. Even under the

aforementioned assumption, the Assembly \vas bound to determine
14 194 \\'RITTES STATEMEKT OF THE REPUBLIC OF PAYAhlA
the existence or non-existence of such "interest" on the basis of

criteria or conditions appearing in the Convention itself. Xo inter-
national organ, whether it be political or not, can act capriciously
and without obedience to law. (See Advisory Opinion of the
International Court of Justice, sz~pra,on Conditions of Admission
of a Stnte tofembership in the United Nations.)
Let us iiow examine the criteria imposed upon the majority to
exclude Panama and Liberia. We must Say, in the first place, that
the action of the majority was based on such vague, confusing and
contradictory allegations that it hecomes very difficult to ascertain
precisely what \vasthe decisive criterion used by the majority. The
record shows a very scant offering of reasons. Most of the mernbers
opposing Liberia and Panama did not say anything, but merely
cast their vote against thern. Only two or three speakers for the
opposition expressed their viexvs, and as the leading one \vas the

United Kingdom's representative, \ve must assume that the im-
properly inotivated allegations he made served to sway the majority
into this arbitrary action. it is evident that such allegations did
not disclose ariy criteria or coiiditions contnined in the IMCO
Convention. It is also clear that such allcgntions were unsound and
unreasonahle.
Which were those allegations?
\Ve find, in the first place, that the United Kingdom's represent-
ative begins by stating what amounts to saying that he \vil1not
"go behincl the flag" in his consideration of thismatter. According
to the record, he said: "There was clearly no clucstion of dealing
with the problem of flags of convenience, which lay outside the
limits of that discussion." (Refereiicesr6pra.)Yet he does in effect
go "behiiid the flag" when he said: "Vessels had really to belons
to the coiintries in question, which was obviously iiot the case with

Panama and Liberia." (Reference snpra.)
He succeeded in imposing as a condition that nations should own,
in the civil sense, the ships, a condition iiot present in the Con-
vention and a very uiisound and iinreasonable one. It was unsound
because, as it has been shown, both by law and by maritime usage and
practicc and by treaty provisions binding upon the Assembly
members, the character of being a ship-owriiiig iiation is determined
by tonnage registration under the flag and not by civil ownership.
And since, as it has heen dernonstrated, a nation is free to grant
. such registration to whom it pleases and to fis, as a purely internal
sovereign attribute, the conditions under which such registrations
would be granted, this atternpt to analyze the private o\\~nershipof
vessels and the nationality of such private owners was not only
unlawful but it was an interference iii the internal affairs of a
nation. Furthermore, the Assembly was creating a rule of impossible

application, since there is no feasible way of clrawing the liiie as to
how far any one can go into determining such private ownership,
which may be distributed into various nationalities, or may even U'RITTEN STATEIIENT OF THE REPUBLIC OF PANAMA 195

remain unknown by reason of bearer titles of ownership. No
criteria could be more unsound and unreasonable.
The action was not only unsound and unreasonable. It was
contradictory. Becanse the same representative of the United
Kingdom was at the time proposing, as the basis for the election,
the adoption of a list (Lloyd's) where ship-owning nations were
listed in the order of tonnage nnder flag registration and without
regard to private ownership. And it was on the basis of this list that
the election was held and Panama and Liberia were excluded,
although they appeared as eighth and third, respectively, in snch
list, and the two nations improperly elected to substitute them
appeared as ninth and tenth. No more caprice can be shown in an
election conducted in such manner.

Then the United Kingdom's representative-while still pretending
that he was not going "hehind the flagM-stated the following:
"In regard to Iiberia's interest in questioof maritimesafety, it
wasundeniable that the vesselsregistered inthat country were among
the most modern and up-to-date in the world. That was due to the
fact that the Liberian Merchant Navy largely belonged to excellent
hmerican ship-owners and that, furthermore, because Liberia left
questions of administration to very experienced international com-
{laniessuch as Lloyd's. The same was true of Panama. But the mat-
ter in hand !vas not the election of the United States or of those
companies to the Maritime Safety Cornmittee. What the Assembly
had to do was to consider how far govemments were interested in
maritime questionsand see to what extent they were able to make a
contribution in specific fields such as the furnishing of crews, the
training of naval architects, the conducting of survcys after colli-
sions, the handling of cargoes, etc...." (IMCO/A.I./ÇR.7.)

Here, again, we see the imposition of conditions not present in the
Convention and which were unsound and unreasonable conditions.
To investigate the nationality of crews, or that of naval architects,
or of other experts chosen by a nation in connection with the admin-
istration of ships under its flag, were matters solely of the interna1
concern of such nation, as hereinbefore demonstrated, and into
which the Assembly members could not go without infringing the
sovereignty and private domain of such nations. And such improper
meddling was al1 the more forbidden when the speaker himself was
admitting the excellent quality of the ships and of the foreign
personnel chosen by such nations to take care of those matters.
Since when, may we ask, is it improper or inadvisable for a nation
to secure the services of foreigners of the highest qualifications in

order to perform more efficiently its duties as regards maritime
safety? 1s it not absurd that an international organ such as IMCO,
which is seeking international cooperation in the field, should now
become so regressive as to inject this nationalistic and chauvinistic
idea in a field where it is seeking international collaboration? We
Say that the action of a Government which seeks to obtain the best196 \VRITTES STATEAIEXT OF THE REI~BI.IC OF I'ANAMA

kind of expert knowledge wherever it can find it, shows, if anything,
a very marked and important interest in maritime safety. (We may
remark, in passing, that the reference to nationality of crews was
entirely out of place because this is one of the factors ivhich, under
Article 28, miist be taken into consideration in selecting the remain-
ingsixmemhers of the Committee, but not the initial eightmembers.)
The record shoii~sthat the above allegations constituted the sole

criteria or conditions chosen by the majority of the Assembly to
exclude Liberia and Panama.
We repeat once more: the action of the Assembly majority was
iiot only unlawful but also contradictory. It asserted that it was
not going "behind the flag" and it was, in effect, going "behind the
flag". It admitted Panama's and Liberia's high standards of effi-
ciency and safety as to the construction and administration of
ships under their flags, yet it excluded them as though they did not
possess snch high degree of efficiency and safety. It claimed that
private ownership of vessels shonld he a leading criterion, and yet
it made a wrongful election on the basis of a most reputable list
which did not show private ownership but only tonnage registratioii
under the flag of each nation.

The action of the Assemhlv maior.tï "oiild not have been more
capricious.
The action of the IhlCO Assembly was clearly and unlawfully
discriminatorv against Panama and Liberia. We develou this more
fully subseq;ciitïy, when stating the protest of the ~epublic of
Panama. Al1 nations have equal rights and status under inter-
national law and under the Charter of the United Nations. One
fiag is just as much a symbol of sovereignty and entitled to the
same respect as the other. Xo member of IMCO or of any other
organ, for that matter, is eiititled to disregard and disrespect one
nation and one flag for the sake of giving an unduly privileged
position to another nation or flag.And this duty not to discriminate

should have been more compelling to an Organization which had,
by its very constitutive instrument, the function of fomenting "the
reinoval of discriminatory action and unnecessary restrictions by
Governments affecting shipping engaged in international trade".
Having acted so capriciously and in siich a discriminatorymanner,
it is evident that action of the Assembly majority was an arbitrary
one. And it was more arbitrary because it so acted afterthe leading
representatives of some of the highest maritime nations had adverted
the .4ssembly as to the illegality, the irnpropriety, andthe arbitrary
nature of the action it ivas about to take. The majority did not
heed such warnings. The arbitrary action was consummated and it
now becomes imperati1.e that such arbitrariness be corrected.
\Ve refer again ta the Advisory Opinion of the International Court

of Justice in the matter of Conditions of Adntission of a State to
Membershifi iîithe United Nations (citation supra) in which the
Court clearly held that the political character of an organ does not WKITTEN STATIIlIENT 01: TH13 K131'UBLIOF PANAMA 197

authorizc it to act arbitrarily. And it is also very opportune to cite,
in this connection, the language of the I'ermanent Court of Inter-
national Justice in the case of Treatment of Polish ~Vationalsin
Danzig (P.C.I.J., Series A/B, No. 44, page 28):
"It should bc rcmarked that the prohibition against discrimina-
tion, in order to be effective, must cnsure the absence of dis-
crimination in fact as well ain law. A measure whicli in terms is
ofgeneralapplication, but in fact isdirectedagainst Polishnationals
and other persons of IJolishorigin or speech, coiistitiites a violation
of the prohibitioii."

C. The violation of the law of the flag wus u violatiott of the
sovereigtttyof the Kepz~blicof Panama
This grave and very serious aspect of this case is developed more

fully liereinaftcr under the heading of "The Protest of the Republic
of Panama". It may suffice at this juncture to say that the action
of the Assembly majority violated well-known principles of inter-
national la\\. to the effect that a vesse1is subject to the jurisdiction
and sovereignty of the nation whose flag it flies; that it also violated
the well-known principle of international law and also of the Charter
of the United Nations (of \vhich al1 IhlCO States are members)
which prohibit intervention in matters which are essentially
\rithin the domestic jiirisdiction of any State and also the principle
that the sovereign equality of al1 States shall be recognized and
respected.
The action of the IMCO Assenibly constitutetl, therefore, a

violation of the sovereignty and dignity of the liepublic of Panama.
IV. THE PROTEST OF TH13 KEPUBLIC OE' PASA>IX

3Iost respectfully, but also most vigorously, the liepublic of
Panama preseiits its protest for the unwarranted and wanton
violation of its sovereignty and dignity by the majonty of the
IRlCO Assembly.

\\'e realize that very high and horiourable as this forum is, it may
not be the most proper place for the lodging of this yrotest. Rut a
sovercign State, in presenting the statement of its position before
this highest court of international justice, caniiot refrain fromiling
such protest when the action now under review by this Court has
been sho\vn to be so arbitrary, capricious and discriminatory on so
delicate and serious a matter as the respect to which a sovereign
nation is entitled. And this being a request for an Advisory Opinion,
regarding the initial functioning of an international organ seeking,
by its very constitutive instrument, cooperation and proper under-
standing among its members, it seems pertinent that the Court
should take cognizance, in rendering its advice to such organ, of the
fact that the offence coinmitted against a sovereign nation is of

the utmost gravity so as to compel such nation to file its strong
and indignant protest.198 U'RITTES STATEXENT OF THE REPUBLIC OF F'ANAJIA

The principle of the sovereign equality of nations is so well-
settled as to need no specific citations thereon or any elaboration
thereof. It may be said that such principle is the first bais of
international law and order. It is expressly consecrated as the
first principle (Article z, par. I) of the Charter of the United
Nations, of which al1IMCO States are members, anclwhich mandate
such members were particularly bound to respect by virtue of the
agreement of relationship entered into between the two inter-
national organizations. When the majority of the IMCO Assembly
sought by its wanton and arbitrary action to displace two nations
from membership in an important international organ, and to
substitute for them tm other nations for no other reason than the

caprice or arbitrary whim of certain States who had confabulated to
perpetrate such exclusion, this discriminatory action can be nothing
else but a wilful violation by such States of the principle of
sovereign equality among al1 nations.
The respect which is due to a sovereign State carries with it, as a
necessary corollary, that no State or organization of States should
meddle or interfere into the internal affairs of a nation or into
matters which are essentially within its domestic jurisdiction. This
is also a well-settled and cardinal principle of international law,
also embodied in the Charter of the United Nations (Art. z, par. 7).
We have shown that, under international law, a State exercises
jurisdiction and sovereignty over vessels registered under its flag
and that it is free to grant its flag registration to whoever itsires
and to establish at its sole will and discretion the conditions and
requisites pertaining to such registration. When the Assembly

majority undertook to scrutinize and make its vote dependent upon
the nationality of private owners of vessels iinder the Panamanian
flag, or on the nationality of theircrews, or the nationality of the
experts or technical iiidividuals or organizations rendering services
to Panamanian vessels, the IMCO Assembly was meddling and
interfering with the internal affairs of Panama and violating its
sovereign jurisdiction.
For al1 this action, we must rciterate, the Repiiblic of Panama
presents its most vigorous protest.

The following summary may be given of the propositions which
have been demonstrated in the foregoing pages of this statement:
I.That in the election of the firsteightmembers of the Maritime
Safety Committee, Panama and Liberia were autoniatically entitled
to be elected as being among the eight largest ship-owning nations
on the basis of tonnage registration under their flags.

z. That there was no right on the part of the Assembly to
determine to what estent Panama and Liberia had shown an im- WRITTES STATEMENT OF THE REPUBLIC OF PAX:UI:\ 199

portant interest in maritime safety, because, as to the eight largest
ship-owning nations, such ownership was in itself final and con-
clusive proof of snch important interest.
3. That the Assembly majority had in effect accepted such
criterion when it had proposed that the election shonld be held on
the hasis of Lloyd's list of registered tonnage, which list did not
refer to ownership in a private sense, or to any other conditions,
but only to the nnmber of tons registered under the flag of each

nation.
4. That the Assembly, nevertheless, proceeded to considerand
to make its vote dependent npon alleged extrinsic factors, not
anthorized by the Convention, such as the private ownership of
vessels under Panamanian and Liberian. flags, or the nationality of
their crews, or the nationality of the experts or technical organi-
zations rendering services to such vessels.

5. That this attitude of the Assembly was not only in violation
of the IMCO Convention, but also in violation of well-known
principles of international law and of treaty law as well as of
general usage and practice, to the effect that the character of a
"ship-owning nation" is determinable solely by flag registration
and not hy the private ownership of the vessel, the nationality of
the crew or any other similar criteria.

6. That the Assembly proceeded with this improper election
despite the fact that leading members of IMCO had pointed out in
a clear and strong manner that the action which was being taken
was contravening the IMCO Convention and international law
and practice.

7. That the election was held and Liberia and Panama being,
respectively, the third and eighth ship-owning nations werc wrong-
fully deprived of their membership in the Maritime Safety Committee
and substituted by France and Germany who are, respectively, the
ninth and tenth ship-owning nations.
8. That the criteria adopted by the IJlCO Assembly to deprive
Panama and Liberia of their lawful membership were also in
violation of the fact that Panama and Liberia have, in fact,

demonstrated at al1 times to have a proper and a very important
interest in maritime safcty, as well as very high standards of
efficiency and safety.
g. That no definite or sound criteria were adopted by the IMCO
Assembly majority in ruling that Panama and Liberia were not
cligible for the membership to which they were entitled, and the
action of the Assembly was capricions, discriminatory and arbitrary.

IO. That the action of the Assembly was a violation of the sove-
reignty and dignity of the Republic of Panama and also a violation
of well-known principles of equality of al1 sovercign States and of200 WRITTEN STATELLENT OF THE REPUBLIC OF I'hZTAhLA

non-intervention intothe interna1 affairs of a sovereign State, well-
settled under International Law and embodied in the Charter of
the United Nations.
II. That such wanton action justifies the protest herein presented

by the Republic of Panama.
The above propositions having been clearly established, the
conclusion naturally follows that this Advisory Opinion should he
answered, as the Republic of Panama most respectfully begs, in
,the sense that

"The ;Maritime Safety Committee of the Inter-Governmental
Maritime Consultative Organization, wliich \vas electeù uii Llie
15th of January, 1959, was not constitutcd in accordance with
the Convention for the establishment of the Organization."

Respectfully submitted,
For the Republic of Panama,
(Signed) Octavio FABREGA,
Agent and Special Ambassador
Plenipotentiary. IVRITTENSTATEAIENT OF THE HEPUBI.IC OF PAN.4M.4 201

Arrnex 1

LLOYD'S REGISTER OF SHIPPIXG. STATISTIC.4L TABLES 19j8
[Nat repuodnced]

Anrzex II
November zo, 1gj9.

The undersigned, Millister of Foreign Affairs of the Kepublic of Panama,

HEREBY CERTIFIES:

That the Regulatioii issued by the Government of Panama pursuant
to Law No. 8 of 1925, governing the registration of vessels under the
Panamanian Flag, is of the following tenor:
Panamanian Consular officers are authorized by law to gant provi-
sional registration and issue provisional certificates of registry (valid for
SIX MONTHSt)o vessels in excess of FIVE HUNDRED (500) net tons which
seek enrolment in the Registry of the National Merchant Marine, provided
they shallcomply with the requirements and shall observe the procedure
set forth below:

I. Application /or Registration
The owner of the vesscl, or his agent, should file a writtcn application
on stamped paper or qualified paper, setting forth the following infor-
mation :

(a) Present and former rames of the vessel;
(b) Kind of vessel: whether steam, motor, tanker, yacht, sailing, etc.
(c) Full name and address of the owner and bis nationality (in the
case of corporations, state name, nationality and address of the
President, the Treasurer and the Secretary);

(d) Former nationality renounced by the vessel;
(e) Tonnage: net, gross and under deck;
(f) Naterial of the hull: wood, cernent, iron, steel or mixcd;

(g) Kind of tackle and rigging;
(h) Machinery: stcam, motor, number of cylinders and horsepower;
name of the manufactiircrs;
(i) Principal dimensions: length, hreadth and depth;

(j) Numher of bridges, decks, masts and funnels;
(k) Traffic and service engaged in (kind of cargo, whether general,
dry, wet; transportation of passengers, number it may carry and
class of accommodation; fishing, pleasure, etc.);
(1) Year and place of building of the vessel and name of builders;
full iiame and address of the person or Company liable for the
payment of the radio bills of the vessel;

(mn) Any other information which may servc to identify the vessel
more fully.202 \VRITTES STATE.\IEST OF THE REPUBLIC OF PASA\!:!

2. Docume~~tatiotio i befiled
(1) Power of attorney or authorizatiou in favor of the ageiit making
the application for registration;

(2) Official certificate or document accrediting tliat the vessel lias
cancelled its former registration;
(3) Title of Ownership of the vessel (the bill of sale should he hi-
lateral):
(4) Certificate of Siirvey (orAdmeasurement) of tlic vcsscl;
(j) International load linc ccrtificate;
(6) Certificate as to the iiiimber of passengers vesse1 may carry,
setting forth the accommodation (class) ;

(7) International certificate of Radio-Telegraphic Safety (Inter-
national Convention ori Safety of Human Lives at Sea);
(8) Certificate of Seaworthiness (inspection of boilers, engines, hull,
etc.);
(9) Health Certificatc accrediting good hygienic and sanitary
conditioris on the vessel;
(IO) Application for Radio Licence (forms to be filled out Ijy a tech-
nician skilled in matters of radio, or by the radio operator of
the vessel).

3. Use, Isstrunce astd Ke~~ewnlof Certificales of Qfralification and
Seamen's Cavds

1.OIIJECT
For the purlmse of staiidardizing the dbcuments of the consiilar service,
the ShippingBureau has siipplied arid willcontiiiuc to supply a new type
of Certificate of Qiialification and of Seaman's Card. These dociiineiits
will provide an incrcase iii the collection of consular fccsand at tlie sanie
time will facilitate the control of said collection.

II. AVTHORITY

Decree La\\, Xo. 4 of April 9, 1gj4 (New Consular TariH). Articles 6,
7, 8, sub-sectioiis24, 25, 26 and 27.

III. ISSUAICE
All persoiis working or rendering service on natiorial vesscls (l'aiiaina-
nian) must he provided with a Certificate of Qualification or Seaman's
Card. Certificatcs of Qiialification are issued iii favcir of persans pcr-
forming skilled tasks on hoard the vessel, such as Master, E *rigiiieer,
Doctor, Mates, etc.; and Cards are issucd to members of the Crew not
performing technical services, that is to Say, the searnen.
The requirements to be satisfied for the issuaiice of a Certificate of
Qualification are set fortli on the last page thcreof.
The Consuls of the licpublic are authorized to issue such documents
abroad; and in Panama, the Inspectors of the Ports. The General In-
spectorate of Labor iii Panama is also authorized to issiic Scamen's
Cards.
On issuing such documents, care should be taken to fiIl in al1 the
information and details reqiiired thereby. IYRITTENSTATEIIENT OF THE REPURLIC OF PASA.\I.4
203
For each Certificate or Card issiied, there shoiild also be prepared, in
duplicale, the respective registration card. The original card shall be for
the Shipping Bureaii and the duplicate for the files of the Consulate.

IV. FEES
For the issue, renewal or registration of promotions of the Certificates
of Qualifications, a charge of U/s.oo shall be made for each service.
A charge ofU/z.oo shall he made for the issue and B/r.oo for the

renewal of each Seaman's Card.

V. COLLECTIOS COSTHOI.
The fees caused by the Certificates and Cards shall be paid by the
holders of said documents.

IN WITNESS WHEREOFt,his Certificate is issiied iri I'aiiama on this
20th day of Noveinher, 1959.
(Signed) Migiiel J. RIoi<~soJr.,
hlinister of Foreign Affairs
ofthc Repiiblic of Panama.

.........................

The foregoing is a translation of the original iri the Spaiiish language,
made by me in the City of Panama, Repiiblic of Panama, on this ~1st
day of Xorember, 1959.
(Signed) Sydney J. \VILLIAJIS,

Public interpreter of the
Repiiblic of Panama.

Annex III

CERTIFICATE 13Y LEGAL COUXSEL OF UNITED NATIONS
RELATINGTO PANARIA'SACCESSIONTOTHE INTEKNATIONAL
CONVENTION FOR THE SAFETY OF LIFE AT SEti. SIGXED AT
LOXDOX OX 31 àIAY 1929

[Nol reprodirccd]

CEKTIFICATE 13Y LEGAL COUNSEL OF UNITED XATIOXS

RELATING TO PAXAMA'S ACCEPTANCE OF THE INTERXA-
TIONAL REGULATIONS FOR PREVENTING COLLISIONS AT
SEA, 1948,APPIIO\'ED RY THE INTERNATIONAI. CONFEREXCE
OX SAFETY OF LIFE AT SEA ON IO JUXE 1948

[.\'ofeprodr<ced]204 WRITTEN STATEUENT 02THE REPUBLlCOF PANAMA

CERTIFICATE BY LEGAL COUNSEL OF UNITED NATIONS
RELATING TO PANAMA'S ACCEPTANCE OF THE INTEX-
NATIONAL CONVENTION FOR THE SAFETY OF 1.IFE AT SEA,
1948 (\VITH ANNEXED REGULATIONS), SIGNED AT LONDON

ON IOJUNE 1948
[Not reprodz~ced]

CERTIFICATE KY LEGAL COUNSEL OF UNITED NATIONS

RELATING TO PANAMA'SACCESSIOX TO THE INTERNATION-
AL LOAD LINE CONVENTION SIGNED AT LONDON ON
j JULY 1930

[Nat reproduced]

Aizizex VII

CERTIFICATE HY THE hflNISTER OF FOREIGN AFFAIRS OF
PANAMA RELATING TO PANAMA'S RATIFICATION OF THE
INTERNATIONAL CONVENTION ON TELECOMMUNICATIONS
AXD RADIO COMhfUNIC.4TIONS, SIGNED AT ATLANTIC CITY

ON z OCTORER 1947
[h'ot reproduced]

CERTIFICATE BY THE SECIIETARY OF STATE OF THE
UNITED STATES OF AXERICA RELATING TO PANAMA'S
PARTICIPATION IN THE AGREEMENT OF 4 JANUARY 1956
REGARDING I'INAI\'CIALSUPPORT OF THE XORTH ATLANTIC
ICE PATROL

[Nat reproduced]

h1ARITIXE LAIVS OFTHE REPUBLlC OF P.4NAMA. ENGLISH
TRAXSLATION BY JORGE FABKEGA P. PANAMA CITY, 1954

[Not reproduced] WRITTEN STATEbIENT OF THE REPUBLIC OF PANAMA 205

AMERICAN BUREAU OF SHIPPING,
Forty-five Broad Street,
New York 4. S.Y.

Sovemher g, rgjg.
The attaclicd press rclease dated Jaiiuar27, rgjg, is herehy certified
to he an exact copy of the press rclease which was issiied at the time of
the Annual Meeting of the Members of the American Bureau of Shipping
on January 27, ~gjg. It covers, in general, the remarks made at the

Meeting by Mr. Walter L. Green, at that time Chairrnan of the Board
of Managers of tlie ilmerican Bureau of Shipping, and since retired.

(Sipned) David P. BROWN,
President.

January 27, Igjg.

I'ress Releuse-Imnzediute

Thc 97th Annual Meeting of the Board of Managers and the Members
of the American Bureau of Shipping was hcld today in the Bureau's
board room, 45 Broad Street, Xew York City.
hlr. WalterL. Green, Chairman of the Board, prcsided and expressed
to more thari 70 Managers and Jfembers his appreciation of their atten-
dance.
Mr. Greeii was reelected as Chairinan of the Board of Managers, and
Mr. David P. Browii was reelected President of the Bureau.

Mr.Lewis C. Host was elected Senior Vice President.
Mr. Artliur R. Gatewood was reelected Vice President-Engineering.
Mr. Alfred Blum was elected as Vice Eresidcnt-Finance and Mr. Kiirt
3Iolter was elected Treasiirer.
Mr. Daniel L. Parry was reclccted as Sccrctary.
Reappointed as Assistant Vice President was Mr. Harold M. Wick
and Mr. William H. C. Seelig as Assistant Secretary.
The following were reelected or electedto the Board of Managers:

For the ï'hree-Year ï'ermExpiring Janziary, 1962:
Jarnes A. Farrell, Jr. Cletus Keatiry John D. Reilly
John M. Franklin Charles Kurz Daniel D. Strolimcier
Gene C. Hiitchinson Edward G. Maddock Car1 F.Vander Clute
Harold Jackson Joseph A. Moore, Jr. Alexander T. \flood
Willard F. Jones

The following werc clccted to the Membcrship of tlie Ariierican Bureau
of Sliipping:

.4lfred P. Johson, Executive Vice President,
Marsh and McLennan
New York, Ncw York Riley O'Brien, Fleet lfanager,
Inland Steel Company
Chicago, Illinois

William F. Rannrich. Manaeer
XIarine DepariGent, ' .z

Cleveland-Cliffs Iron Com~anv
Cleveland, Ohio

Henry G. Steinbrenner, President,
The Kinsman Transit Company
Cleveland, Ohio

Captain J.C. \Voelfel, Manager,
XIarine Department,
Richfield Oil Corporation

Long Beach, California

In his remarks, Mr. Green said:

"This is the 97th Annual Meeting of the Xembers of the American
Bureau of Shipping and 1 submit the report of the Bureau's operations
for the year 1958.
"On Janiiary 1, ~gjg, 376 seagoing vessels of 7,4j4,319 gross tons and
j Great Lakes vesscls of 74.100 tons were under construction and/or

under contract to be Classed with the Bureau. In addition, there were
16j smaller miscellaneous type vessels aggregating 111.267 gross tons
also contracted for to be built under the supervision of the Surveyors
to Class ivith the Bureau. This new construction totals 546 vessels of
7,639,686 gross tons. This is a decreaseof ~,ooo,oootons from the tonnage
totals of one year ago, which at tliat time represented the greatest
tonnage under uray to Bureau Class at the start of ariy peacetime year.
One year ago, contracts were in existence for the constructioii of 694
vessels of 8,631,258gross tons to Bureau Class.
"Of these 546 new vessels now being built to Bureau Class, igo of

1,244,310 gross tons are on order in United States shipyards, compared
with 1,941,164 tons in January, 1958. This includes 57 ocean going
cargo ships, tankers, and a passenger vcsscl, of 1,082,400 tons; j Great
Lakes bulk carriers of 74,100 tons, and 128 miscellaneous vessels such
as tugs, towboats, barges, ferrics, offshore oil well drilling rigs, etc.,
aggregating 87,810 gross tons.
"-4 total of 356 new vesscls of 6.395.376 gross tons are on order in
yards outside of the United States to be built to American Riireau of
Shipping Classification. This is more than five times the amount of
tonnage currently under way in American yards tu Bureau Class. A

number of thcse will be finished in 1959, but others will not be completed
until 1964. These 356 new vessels are being built in zo countries, a record
nuinber for the Bureau, and include g undcr way in United Kingdom
shipyards, 21 in France, 14 in Belgium, 13 in Sweden, 66 in Germany,
73 in Italy. IO in Spain, 32 in Holland, 2 in Turkey, go in Japan, j in
Argentina, 6 in Denmark, 3 in Greece, I in Lcbanon. I in Israel, 2 in
Taiwan, 2 in Brazil, 3 in Egypt, I in Curacao, and 2 in Canada. Exclusive
Bureau Surveyors are maintained at practically al1 of the sliipyards abroad at \!!hich these vessels are being built. Thesc new vessels include
tankers, bulk ore camers, cargo ships, passenger liners, ferries, tugs and
harges.
"Applications for Class covering \.essels to be constructed were received
chiring 1958 for a total of 389 of 2,083,311gross tons. This is a decrease
of 2,466,248 tons over the 1957 figure, which totalled 632 vessels of
4,549,553 tons. About 72 percent of the tonnage covered by the 1958
apl~lications for Class will be biiilt in shipyards outside of the Uiiited
Statcs, this aggregating 1,611,666 tons, while tlie tonnage to be built in

United States shipyards, as represented by tliese applications, totals
471,645 toiis.
"A total of 464 new vessels were completed in 1958 under the super-
vision of the Survcyors of the American Bureau of Sliipping. These
aggrcgated 2,414,886 gross tons and 3,763,631 deadwcight tons, and
eml~loyed1.696,gSj horsepower of propelling machinery. This represcnts
an increase of 111,ggS tons from the gross tonnage (2,302,928) of new
vessels coml~leted to Bureau Class in 1957.
"Of these 484 new vessels, 352 were coml>letcd in United States ship-
yards, these totalling 777,848gross tons. This includcd 29 large merchant
vesscls totalling 534,683grosstons. The balance of 323 were miscellaneous

river, Iiarbor and offshore oil drilling \~ssels, princi[>ally non-propelled,
totalling 243,165 gross tons.
"A total of 132 new vessels ivere completed to Buren11Class in ship-
yards oiitside of the United States diiring 1958. these aggregating
1,637,038 gross toiis. This represents a decrease of 124,SzS tons over the
1957 rcsiilts, when 133ncw vessels of 1,761,866gross tons were completed
iiithesc yards to Biireau Class. For the sixtli time in the 97 year history
of the liureaii, more new tonnage was coinl~leted to IJureau Class in
shipyards abroad than in United States yards. Again, as in recent ycars,
a large niimbcr, 42, were constructed iii Japan, while 43 were finished in
Italy, 4 in Great Uritain, j in Relgiiim, 12 in Gcrmany, 7 in Holl.and,
3 in France, I in Sweden, 4in Israel, I in Lebanon, 4 in Spain, 2 in Turkey,

3 in HongKong and I in Argentina. In addition, some repair and altera-
tion work on existing vessels was acconiplished in ports abroad under
IJureaii supervision.
"Thcrc now exist in Class with the Aincricaii I3urcaii of Shippiiig,
6,165 vessels of 45,246,738 gross tons, which is an increase of 1,663,463
tons over oiie ycar ago. About ?O percent of these vessels are temporarily
inactive. To these totals there will be added the 546 vesscls now on order
to be biiilt to Bureau Class in shipyards throiighoiit the world, making a
grarid total of 8.709 vessels of 52,886,424 gross tons. A substantial per-
centage of these vessels are oivned and/or registered in countnes other
thaii the United States. These figures includc seagoing tonnage, Great

Lakes aiid river craft, both self-propelled ancl non-propelled. During tlie
past year a riumber of existing vessels owned abroad were Classed by the
Bureau.
Ïèchizic Aclliuilies

"Plan approval ivork, ineasured iii nomber of plaiis siil>mitted, de-
clined doring the year belom the all-tiinc Iiigh lc\~clof 1357 and even
soinewhat bclow that of 1956. Hoi\,ever the new and special types of
ships involvcd retliiired nearly as many man hoiirs of work on the part
of the technical staff.208 IVRITTEXSTATEMEXT OF THE REPUBLIC OP PAX:\,\lA
"Research in connection wilh the expaiisioii and iinprovement of the
l'iuleshas contiiiiied to go forward and this has resiilted in two important

developments, both of which have been approved by the Techiiical
Committee. Tentative Rules for the structiiral design of tankers, up to
the largest sizes now contemplated, are rio\\, availablc to builders and
designers in painphlet form. It is expected tliat aftcr a period of use,
and particularly as a result of continuing researcli into the problems of
striictiiral performance under service conditioiis, somc refinenicrits may
be found desirahle to be made to these rules, and that tliey then may be
incliided iri the formally puhlished "Kules for Biiilding and Classing
Stecl Vesscls".
"'She method of determining the rcqiiired effective sectional areas
of the strength decks of the normal types ofcargo vïsscls has been modi-
fied to reflect inore accurately the cffect of changes in bearn on the re-
qiiirernents for longitudinal strength and the modifications are included
in the 1959 issue of the Kules which will he available for distribution at
an early date.
"Considerahle interest continues to be showii iii tlie devclopineiit of
special types of vessels designed to carry cargo in large containcrs from
15 to 35 feet iii length, stowed in specially designed guides. and handled
hy traveliiig cranes camed on board ship. Both new alid existing vessels
are involved in this activity. Interest is also hcing shown in the inclusion,
in some of the contemplated desigiis of general cargo ships, of certain
spaccs which will be adaptable for the loading and iinloading of truck

trailers on wheels. Both of these developments involve iiiiusiial structiiral
arrangements which require the inost tliororigh studies and entreme
carc in their development to insiire that the striictiiral iiitegrity of the
ship itself is not iinduly sacriîiced.
"The iise of aluminum for small vessels coiitiniies to increase. Designs
for tlircc types of barges and a scagoiiig tiig have beeii al~proved. A
numher of miscellarieous types of small craft usecliri off-sliore oil drilling
operatioris are heing made of this light mûterial.
"Thc J3ureau has continued its active participation in the devclopment
of iiiiclear power for merchant sliips. 'The biiildirig to Class witti the
l'iiireau of the world's first nuclear powered nierchant stiip, the combina-
tion passenger and cargo liner 'Savannah', is ~iroccedingat suc11a pace
tJiat it is espected she will bc launclied carly ttiissiimmcr. l'lie fabrication
of the main nuclcar components is alinost complete and their installation
in the containment vesse1 will commence this spring. 3Iost of the vital
systems are in the process of beiiig shop tcsted prior to de!ivery to the
shipyard. Critical experiments, which were started some tinie ago, are
proceeding with investigations which will establish thc niiclear properties
of the reactor core and the proper fuel loadiiig sequeiice. The production
of foc1 elements has been started and it is anticipated that the ship's
reactor will gocritical in the spring of 1960.
"ln anticipation of the constriiction of tlie 'Savannah' aiid the possible
rapidly iricreasing adaptations of niiclear power to merchant ships, there
was orgaiiized in 19jj under the sponsorshil~ of tlie Ships' Alachinery

Corninittee of the Society of Xaval Architects and Marine Engineers a
special panel to collect siich inforiiiation regarding niiclear po\ver as
would be of interest to ship designers, builders and operators. Later
that year the United States Coast Giiard, to whicli organization is
.ciitriiste<lhy legislation the responsibility for tlie safety of United States210 \!'RITTES STATEMENT OF THE REPUBLIC OF PASAIIA
and Trading Co.At the Nippon Steel Tube Co.Tsurumi yard two 40,650
ton tankers, the 'MichaelCarras' and the 'Aquagem'were constructed to
Bureau Class for Oceanic Petroleum Steamship Co. The Mitsubishi-
Hiroshima Yard completed 5 cargo vessels of 15,000tons each for export.
Delivered by Mitsubishi Nippon Heavy Industries, Kobe, was the
33,215 toi1 tanker 'King Peleus', built for Myrmidon Shipping Co.; the
'Caitex Arnhem', of 32,270 tons, for Nederlandsche Pacific Tankvaart;
and 'No. 2 Tsubame Afaru',of 33,300 tons, for Maruzen Oil of Panama.
Kawasaki Dockyard Co. finished for Triton Shipping, Inc., the huge
combination ore or oil carriers 'Epic' and 'Dynamic',of 46,200 tons. A
sister ship, the 'Cosmic',had been completed in 1957. At the Mitsubishi
Shipbuilding &- Engineering Co., Nagasaki Works, the 46,300 ton
tankers 'Massachusetts Getty' and 'Pcnnsylvania Getty' were completed
for Transoceanic Shipping Corp. The 'Esso Uruguay' and 'Esso Peru'.
of 35,650 tons, were delivered to Panama Transport Co. and the 42,500
ton tankships 'Naess Leader' and 'Xaess Explorer' wcre biiilt for the
Naess Shipping Co. interests. Also completed at the Nagasaki Shipyard
was the 42,600 ton tanker 'Santiago', ordered by Texaco (Panama),
Inc., and the 'CuyamaValley', atanker of45,800tons, for Globe Tankers
Inc. The Innoshima yard of the Hitachi Company delivered the 'Caltex
Eindhoven', of 31,780 tons, to Nederlandsche Pacific Tankvaart, while
their Osaka plant completed the 20,300 ton cargo ship 'Delphic Eagle'
for Sea Euterprises Corp. About ~,oog,ooogross tons of new vessels are
scheduled to be completed to Bureau Class in Japan during the current
year, the total there nowon our books aggregating 2,1()7,oootons, which
is a decrease of 360,000tons fromlast year's total. Practically al1of this
new tonnage is for export.
"One passenger vessel was completed to Bureau Class in Italy during
1958. This was the liner 'Federico C.', of 20,416 gross tons, built for the
Lloyd Tirrenico Line by the liiige Genoa yard of Ansaldo. This yard also
finished the 48,380deadweight ton tankship 'Agrigentum' for Compagnia
Trasporti Petrolio S.P.A. di Palermo. In addition, the Ansaldo-Genoa
yard completcd three sister tankships of 31,300 tons, these being the
'Mirador' for Mirador Compania Naviera Panamena; the 'Elios' for
Societa Elios Palermo (Sicily;and the 'Sicilmotor'for Sicilnavi,Siciliana
di Navigazione. Iîlso, the bulk carrier 'White River', of 15.g30 tons, was
delivered to International Navigation Corporation. An outstandingevent
at the Ansaldo-Genoa plant last year was the launching last December
of the luxury transatlantic passenger liner 'Leonardo Da Vinci'.This is a
twin screw vessel of 30,500 gross tons being built for the Italian 1-ine.
"A 35,600deadweight ton tanker was delivered by the San l\Iarco yard
of Cantieri Riuniti dell'Adriatico. This was the 'Mariarosa Augusta'.
constructed for Societa' Armatoriale Prora S.P.A. of Palermo (Sicily).
"At the Monfalcone shipyard of Cantieri Riuniti dell'Adriatico two
tankers of 35,560tons were dclivered tothe Panama Transport Co..these
being the 'Esso Panama' and 'Esso Argentina'. Theyare the second aiid
third of an order for six tankships placed by the Standard Oil Company,
N.J. Also finished were the sister cargo ships 'Pia Costa' and 'Maria
Costa'. vesselsof 18,400tons, built to Bureau Class requirements for the
Costa Line.
"Two tankers of 31.500 tons were constmcted for Nereide Societa di
Navigazione-the 'Felce' at the Leghorn yard of Ansaldo and the
'Polinice'at the Ansaldo La Spezia yard. The latter yard also completed WRITTEX STATEhlENT OF THE REPUBLIC OF PANAMA 211

two bulk carriers of 17,000tons. One of these. the 'Porto Marghera', was
delivered to Societa Vetrocoke of Turin, while the 'La Pintada' \vent to
La "Two of three bulk carriers ordered by Phs. Van Ommeren of Rotter-
dam were completed by Cantieri del Mediterraneo. These were the
'Ossendrecht' and the 'Zwijndrecht', vessels of 16,750 tons.
'At the Ancona yard of Cantieri Navali Riuniti two tankships of
35,600 tons each were finislied to Bureau Class. First of these was the
'Agua Clara', ordered by Compania Naviera Panamena, and the 'Agip
Ravenna', built for Agip S.P.A. of Rome.
"ln Italy there isnow a total of961,667grosstons of merchant shipping
building to Bureau Class, this representing a decrease of 171,000 tons
over the January, 1958, total. Most of this is for ltalian owners and
registry. Of this total, al~l~roximately400,000 tons is scheduled for
completion in 1959. wliich includes the 35.500 deadweight ton liquid
petroleum gas tanker 'Esso Puerto Rico' now nearing completion for the
Panama Transport Co. at the Monfalcone shipyard of Cantieri Riuniti
dell'Adriatico.
"ln France, the 38,300 ton tanker 'Esso Parentis' was built to Our
Classification requirements for Esso Standard, Sté. An. Française by
Chantiers de I'Atlantiquc. The 'Fina America', a tanker of 33,800 tons
was delivered to Petrofina S.A., Belgium, by Chantiers Navals de la
Ciotat, and the 'Artois', a tanker of zo,zoo tons, was completed by
.4teliers and Chantiers de la Seine Maritime for SociétéFrançaise de
Transports Pétroliers. Of the 453,600 gross tons now building to Bureau
Class in France, al1but 2 vessels are for French intcrests and registry.
Included is the 60,000 gross ton, z,ooo passenger, luxury passenger liner
'France' ordered by the French Line from Chantiers de l'Atlantique, the
keel for which was laid in October. . 1,-,..and is now scheduled for
com"In Germany, the Deutsche \\lerit yard at Hamburg completed four
more of ten Bureau Classed bulk carriers of 35,500 deadweigbt tons each.
One of these was the 'Rio Grande', an iron ore carrier, while the other
three were bauxite carriers. These were the 'Baumare', the 'Baune' and
the 'Bauta'. Al1were built for Transworld Carriers. Inc.. an affiliateof
the Joshua Hendy interests. Four of these vessels had &en finishedin
1957. The first of three 36.200 ton tankers ordered by Esso Tankschiff
Keederei, the 'Esso Berlin', was delivered in Decembcr. At the Bremen
yard of A. G. \Treser the ~2,000 ton tankship 'Eurydice' was fmished
for Compania Maritima San Basilio. The H. C. Stulcken Sohn shipyard
at Hamburg finished the last two of four duplicate 7.750 deadweight ton
freighters for Flota hfercante Grancolomhiana S. A., these being the
'Cartagena de Indias' and the 'Ciudad de Barranquilla'. The Weser-
Bremerhaven shipyard completed 2 cargo ships to Biireau Class. These
were the 'Continental Trader' and the 'Continental Carrier', built forthe
United and Arrow Steamship Companies of Ncw York. These are part
of an order for six freighters of 13,400tons each. About 1,138,162 gross
tons of merchant ships are now on order in Gcrman to be built to
Bureau Class. This is an increase of 3oo.000 tons over i: total last year.
Of these vessels, some 273,874 tons should be completed this year.
"Currently under way to Bureau Classin Great Britain is 137,685g~oss
tons of shipping. Completed last year to Bureau requirements at the
Atlantic ShipbuildingCompany was the first of four 4,000 ton freighten212 \\'RITTEN STATEXENT OF THE REPUBLIC OF PAXAhlA

The last of two 14,000ton cargo ships, the 'Ermis', ordered by Compania
Maritima Samsac Limitada was delivered by Bartram and Sons, Sunder-
land, England. The second of two duplicate cargo ships. the 'Lord Co-
drington', was finished by Scotts' shipyard in Scotland for N. G. Nicolaou
of Monte Carlo. This yard also delivered the 1g.700 ton oil tanker
'N. Georgios'to Libra Coml~aniaXaviera S. A.
"In Belgium, S. A.Cockerill-Ougreecompleted the cargo ships 'Moero',
'Mobeka'and 'Mohasi'for Compagnie Maritime Belge. These are Diesel
powered vesselsof 1z.oootons,part of an order for 8 vessels.There isnow
on order in Belgium to he built to Bureau Class zoq,ooo tons of iiew
mercliant vessels. All of tliese are for export except five modern cargo
ships bciiig constructed for CornpagiiicMaritime Belge.
"Complçted to Bureau Class List year at the Kockums yard, Malrno,
Sweden, for the Xiarchos intcrests was the 40.750 ton tankship '\Vorld
Si~irit'.Still oii order to he huilt in Sweden to Bureau reciuirements is
467.520 gross tons of tankers, rangiiig in size from 39.350hP to 65,000
deadweight tons.
"ln Holland, two taiikers of24,800tonswereconstructed iinder Bureau
supcrvisioii for Nederlandsche Xorness Scheepvaart. TRese were the
'Naess Tigcr'. built at the Schelde shipyard in Flushing, and the 'Naess
Lion'. completed by Ned. Dok en Scheepsboiiw. Fiiiishcd at the \Vilton-
Fijcrioord yard at Schiedam was the oil tanker 'Lorraine', a vessel of
26,050 tons, ordercd by SociétéFran~aise de Transports I'étroliers.
"ln Spairi, at the 'Elcano' shipyard the first two of four duplicate
freighters were finished aiid Classcd by the Hiireau. These were the
'Ciiidad dc Pasto' aiid the 'Ciudad de Guayaquil', vesselsof 7.500 tons.
Class theeoit tanker 'Esso Panipa' for Esso S.A.P..4. This is a vessel of
r.600 tons.
"One of the most oiitstariding events in maritime liistory, possibly
eventiially transcending in importance the Panaina Giiial and the Suez
Canal, will shortly take placc with the opening in the Spring of this year
of theSt. Lawrence Seaway. \Vhat far rcaching effect tliis new deepwater
route to the Great Lakes will have uilon American and Canadian flac
shipping remains a matter of coiisidérable speculation. Outside of a
nuniber of applications to the hfaritime Administratioii for an operating
subsidy, howëver, no American steamship operators are conctructing
ne\\, trans-oceanic vessels for this run. They contend it is not even re-
motely fcasible for an ol~erator to commence an unsiihsidized service
from the 1-akesto overseas ports.
"On the other hand, several steamsliip conipariies iii Europe are now
constructiiig vessels specially desigiied to transit the St. Lawrence
Seaway immediately upon its opening. Recently launi:lied at the Chan-
tiers de Provence shipyard in France for the hiige Compagnie Généralc
Transatlantique was the 7,500deadweight toi1freighter 'Chicago'which,
togetlier with her sister ship the 'Cle\.eland'.will soon start on the run
hetween France and the Great Lakes. During winter, wlien navigation
is closed by ice in the St. Lawrence. these Diesel driven ships will be
operated iri the \l'est Indies trade. In order that they may operate as
longas possiblein the Great Lakes trade, the hulls will be icestrengthened
machinery will be located at the after endpf the vessels. ln addition to \'RITTES STATEZIENT OF THE REPUBLIC OF PANANA 213

refrigerated cargo space, the vessels will have an upper 'tween deck of
unusual height so that auto trucks may be carried. An 80-ton dcrrick
will supplement thc usual jand IO ton dcrricks.
"Another Company with long experience in the Great Lakes tradc,
utilizing the heretofor necessarily small restricted size freightcrs, is the
Oranje Lines of Holland. They, too, have been preparing for the opening
of the new Seaway. To be completed later this year, after an unfortilnate,
quite destructive fire at the shipbuilders yard, is the 'Princess Irene', a
vessel of 8,526 tons. A sister ship, the 'Princcss Jlargriet' will be finished

in 1 61 Hotli will have cargo cold storage facilities.
"Ztili another line constmcting new vessels for the European-Great
Lakes route is Manchester Liners Limited of England. Recently launch-
ed for them was the 'Manchester Faith', a closed shelter decker designed
expressly for ncgotiating the St. Lawrence Seaway. It was built by
Austin and l'ickersgill Limited, Sunderland, England. This 6,000 ton
vessel has threeliolds and 'tween decks with large hatches for the handling
of dry cargo, and two deep tanks for the transportation of 250 tons of
tallow and rzo tons of edihle oils. Another vessel designed for the St.
Lawrence Seaway service was launched in December for Manchester
Liners Limitcd. This was the 'Manchester Miller', an 8,600 gross ton
freighter built by Harland and \\'olff, Limitcd, Belfast. Follo\r,ing a

practice iiiitiated in the United States sonic years ago, this vessel will
have no funnel, exhaiist fumes from the boilers heing carried away
through a pair of diimmy derrick posts. The gcared turbine propelling
machinery is at the after end of the vessel, providing a sea speed of
16 knots. Another British flag company, Riiries Markes Limited, will
soon enter the Great Lakes-Mediterranean service with a new 7,100 ton,
16 knot, Diesel propelled freightcr.
"An indication of increasing activity in the overseas trade on the
Great Lakes is scen in the report that during the 1958 shipping season
a total of 416 forcign flag ships called at Cleveland, Ohio, comparcd

with 299 in 1957. In addition, some 286 Canadian ships called at Cleve-
land, an increase of 27 over the previoiis ycar.
"Chicago is served by twenty-six foreign flag lines. Nearly 400 sailings
to and from the Port of Chicago were schediiled in 1gj8. According to
the United States Army Corps of Engineers, Chicago is the world's
greatest inland port. Traffic is in the neighhorhood of 7j million tons
annually, greater than any tideu~ater port in the United States except
New York and the Delaware River. Overseas exports, howevcr. are
comparatively small, totaling 114.834 net tons in al1categories in 1957.
It was rcccntly predicted that with thc opening of the new Seaway,
within six years Chicago could become thc largcst grain exporting port
in the Unitcd States, with annual exports as Iiigh as IIO million bushels.

"Activity in tlie Great Lakes iron ore, coal and grain transportation
trade durine the restricted o~eratin~ season when the Lakes are free of
ice was grcitly curtailed du&to th; business recession extending over
most of 1qs8. As a result, the total tonnage moved was about 30 percent
less than-in 1957, aggregating abolit ~~f,ooo,ooo tons. Iron ore trans-
ported was at tlie lowest level cxpcrienced since 1938, while the coal
movement \vas the lowest since 1949. Someiron ore carriers were not put
into service at al1 last year, remaining laid iip from the 1gj7 operating
season.
"Lately there have appeared in the newspapers and magazines of the214 WRITTES STATENEST OF THE REPUBLIC OF FASAAlA

\irorldmanv articles conceriiinc the tremendous mowtli of the merchant
fleets regisiered under the flags of ~iberia and ?aiiama. The inference
lias frequently been drawn tliat the shir~sof these flcets aresub-standard
with respect-to design, maintenance,'safety equipment, etc. This has
been a matter of considerable concern to the Americaii Bureaii of Ship-
ping when it is recognized that approximately 57 percent by niimbers
and 64 percent by gross tonnage of the Uberian fleet, aiid 45 percent by
numbers and 56 per cent by gross tonnage of the Panainaniaii fleet, are
Classed with the Bureau that any such implications are entirely un-hips
warranted. From the standpoint of original design, maintenance and
safety, the ships of these fleets compare most favorably with the fleets
of any of the other maritinle nations in which the liureau has active
participation.
"There is in some quarters a belief that the fleets of Liberian and
Panamanian registry are comprised Iargely of older ships sold out from.
under the flagsof original registry as they are replaced hy newerand more
modern ships. The following figures will indicate how completely un-
foiinded areany such beliefs in sofar as the ships in Classwith the Bureau
are concerned. Of the 572 Liberian ships totaling ovcr 7,000,000 gross
tons in Class with the Bureau, only 23, or about 4 percent. totaling
i8o.000 gross tons were built prior to the World \Var 11 construction
program. Of the 249 Panamaniaii ships totaling 2,450,000 gross tons
now in Class with the Bureau, only 32, or less than 13 percent, totaling
223,000 gross tons were prewar built. Of these ships, many were exten-
sively altered and modernized to suit them for their present services
as a part of the postwar reconversion program.
"In the Classed Liberiaii fleet, 263 totaling 4.65o.000gross tons, which
is 66 percent of the total gross tonnage, and in the Classed Panamanian
flect 65 totaling 940,000 gross tons, which is 38 percent of the total gross
tonnage, are less than 15 years old. Of the Liberian fleet, 209 totaling
3,850,ooo gross tons, which is 55 percent of the total gross tonnage in
Class, and of the Panamanian fleet 40 totaling 575.000gros tons, which
is 236-percent of the total gross tonnage, are less than five years old.
"Since the ships built during the \Vorld War II construction programs
still comprisea substantial segment of the fleetsof many ofthe traditional
maritime nations, nearly everyone associated with these ships is familiar
with the fact that, inspite of the urgency with which they were needed,
the standards of design and constriiction were not allowed to suffer.
By and large, ail of these sliips were built to the theii highest standards
of the classification societies. As far as the postwar-built ships are
concerned, al1those in Class with the Bureau conform to the standards
of our Rules, these being administered impartially irrespective of the
date ships to be found anywhere in the world.e of the most modern up-to-
"The Govemments of Liberia and Panama have entrusted to the
Bureau. amone a number of other classification societies. not onlv the
inspections cu$omarily carried out to insure the maintenance necéssary
to continue the Classification of the vessels, but, also, the added inspec.
tions required to assure compliance with the provisions of the Intema-
tional LoadLineand the Safety of Lifeai SeaConventions to which these
nations are signatory. The Bureau is fully aware of the responsibilities
entrusted to its Surveyors. AU inspections are being carried out in a \\'RITTEX STATEMEST OF THE REPUBLIC OF PASAhlA 215

tlioroiighly diligent manner so as to satisfactorily discharge these
resi~onsibilities. In so far as the shius Classed with the Bureau are con-
ce;ncd, there can be iio basis foi considering these ships to be sub-
standard.
"Total world shipbuilding production in1958 is estimated at 7,500,000
gross tons of seagoing vessels-approximately the same as in 1957.
Wliile there have been some cancellations of shipbiiilding orders in
almost al1 countries during Igj7 and 1gj8, total oiitpnt in~gjg could

approximate the totals achieved in 1958.
"The decline in world trade dtiring the past eighteen months has had
a considerable impact upoii the merchant fleets of the world. A large
niimber of tankers and freighters have continued to lay-up in the prin-
cipal maritime nations. This constitutes a current siirplus of tonnage.
Tlie situation bas bcen aggravated by the big output of the shipyards,
with the result that some new ships are still beinglIIIIU~O~completion,
particiilarly tankers. In some few cases brand new supersize tankers
have gone immediately into the grain transportation trade. However,
there has been, comparatively speaking, a dearth of new orders for
shipbuilding establishments throughout the world. This, of course, wili
cut quickly into the big existing backlog of shipbuilding orders in some
of the more fortunate countries.
"While the volume of world commerce continues at a depressed !evel,

we have been able to maiiitain our current staff on surveys on existing
vessels and on new shipbuilding, testing of materials, etc., in the steel
mills, engine and boiler shops." 7. EXPOSÉ ÉCRIT DU GOUVERNEMENT DE LA
CONFÉDÉRATION SUISSE

Faisant usage de la possibilitéqui lui est offerte par l'ordonnance
du 5 août 1959 de la Cour internationale de Justice, la Suisse se
prononce comme suit sur'la requête de I'IMCO demandant à la

Cour de lui donner un avis consultatif sur la composition du
Comitéde la sécnritémaritime.
I.Conformément au droit suisse (loi fédéralesur la navigation
maritime sous pavillon suisse du 23 septembre 1953.Recueil oficiel
des lois et ordonnances dela Colzfédératioiszuisse, 1956, 1395 SS.).
des navires ne peuvent êtreenregistrésdans le registre des navires
suisses et arborer ainsi le pavillon suisse, que si d'une part la pro-
priétédu bàtiment dont i1,s'agitestentièrementen mainssuisseset si
d'autre part l'exploitation est dirigéede Suisse par une organisation
suisse habilitée. Les propriétaires suisses doivent en plus être
domiciliés en Suisse(pour les sociétés anonymes,cette disposition

est applicable aux 314 des actionnaires). Les créanciers hypothé-
caires et autres créanciersainsi que les armateurs doivent êtredes
Suisses domiciliés en Suisse; les fonds investis dans les navires
doivent êtred'origine suisse.
L'équipage des navires suisses se compose aujourd'hui en
majorité de citoyens suisses. Une ordonnance prévue par la loi
prescrira dans quelle mesure les équipages.des navires suisses de-
vront comprendre des capitaines et marins suisses.
Avec ces dispositions extrêmement sévèressur la nationalité, la
Suisse veut qu'il n'y ait, en prévisionnotamment d'une aggravation
de la situation internationale. aucun doute sur le caractère inté-

gralement suisse de ses navires.
2. Chaque ktat est en principe libre de formuler comme il
l'entend son droit national maritime, à la condition toutefois que
le droit international public conventionnel ou coutumier ne s'y
oppose pas. Sous cette réserve il n'y a donc pas d'empêchement
que le droit maritime d'autres Qtats diffère de la réglementation
suisse telle qu'elle vient d'être exposée. La restriction la plus
importante imposée par le droit des gens réside dans la règle
coutumière,actuellement formuléedans l'article 5 de la Convention
sur la haute mer du zg avril 1958, selon laquelle il doit existorun
lien substantiel entre l'État et le navire1à savoir que l'État doit
(rnotamment exercer effectivement la juridiction et son contrôle

dans les domaines technique, administratif et social, sur les navires
battant son pavillon ».
3. Lors de l'examen de la question soumise àla Cour internatio-
nale de Justice, il convient de tenir compte du but que les États
signataires ont recherché en adoptant la disposition contestée. EXPOSÉ ÉCRIT DU GOUVERNEMENT SUISSE 217

A leur avis, le Comitédelasécuritémaritime, àqui incombel'examen
des problèmes de tout genre concernant la sécuritéde la mer,
devrait être composé uniquement de représentants d'États qui
attachent aux problèmes de la sécurité maritime un intérêtim-
portant. Afin de tenir compte d'une manièresi possible proportion-
nelle des genres différents d'intérêt,on distingua deux roupes:
8sur les 14 membres du comitédoivent appartenir àdes ? t!ts qui
possèdent lesflottes de commerce le: plus importantes; les 6 autres
membres doivent représenter des ktats qui ont d'autres intérêts,
ainsi les pays dont les ressortissants entrent, en grand nombre,
dans la composition des équipagesou qui sont intéressésau trans-
port d'un grand nombre de passagers. II ressort de cette confron-
tation que, dans le premier groupe, on a en vue la représentation
des intérêtsmatériels sur les navires ( ropriété, hypothèques,etc.).
Cesintérêts-là n'existentpas pour les 'tats qui accordent également
le droit de pavillon aux navires appartenant à des étrangers et SC
trouvant sous contrôle étranger.
On peut d'ailleurs constater que la Convention relative à la
création d'une Organisation intergouvernementale consultative

de la navigation maritime du 6 mars 1948 définit très diversement
certains groupes d'États. La notion discutée «pays qui possèdent
les flottes de commerce les plus importantes » n'est pas identique
avec celles des:
I. pays qui sont le plus intéressés(ou: qui ont un intérêt
notable [art. 17 cl ) à fournir des services internationaux de
navigation maritime (art. 17 a) ;

2. pays qui sont le plus intéressés(qui ont un intérêtnotable
[art.17dl ) dans le commerce international maritime (art.17b) ;
3. pays qui ont un intérêt important dans les questions de
sécurité maritime (art. 28);

4. pays dont les ressortissants entrent, en grand nombre,
dans la composition des équipages (art. 28);
5. pays qui sont intéressésau transport d'un grand nombre
de passagers de cabine et de pont (art. 28).

Chacune de ces désignations veut mettre en évidenceun élément
différent. Si les États signataires avaient été del'avis qu'il sufit
pour le groupe des 8 membres qu'une flotte importante arbore le
pavillon de I'État intéressé,ils auraient adopté à la place de la
formule e pays qui possèdent les flottes de commerce les plus
importantes >celle de: spays qui ont sous leur pavillon les flottes
les plus importantes II.L'expression « possèdent » (anglaisa own »)
signifie qu'il ne suffit p-s en ce qui concerne l'éligibilitédans le
groupe des huit membres du comité - que le navire arbore le
pavillon de I'État intéresséet qu'il n'y ait ainsi qu'un ilien sub-
stantiel», mais qu'il faut en plus que le navire appartienne à cet218 EXI'OSÉ ÉCRIT DU GOUVERNEAIENT SUISSE

État ou à ses ressortissants. Une solution pourrait êtretrouvée
dans l'application des critères de la protection diplomatique.

4. La Suisse souhaite que la Cour internationale de Justice se
prononce sur la question soulevée par I'IMCO et qu'elle élimine
ainsi i'imprécisionqui existe actuellement dans l'interprétation de
l'article 28.

Annexe :

Loi fédéralesiir la navigation
maritime sous pavillon suisse du
23 septembre 1953 (Recueil O@-
ciel des lois et ordonnancesde la
Confédération saisse.
- RO. 1956, 1395 ss.).

[ATonrefiroduite.] 8. EXPOSÉ ÉCRIT DU GOUVERNEMENT DE LA
RÉPUBLIQUE ITALIENXE

I. Le Gouvernement de la République italienne a l'honneur de
soumettre à la Cour internationale de Justice le présent mémoire,
rédigéaux termes de l'article 66 du Statut, et avec référence à la
lettre du 5 août 1959 du substitut chancelier de la Cour. Par cette
lettre, Monsieur le chancelier a bien voulu informer le Gouverne-
ment italien que Monsieur le Président de la Cour, avec son ordon-
nance en date du 5 août, a fixéle terme du 5 décembre 1959 pour la
présentation d'exposés écrits sur la question concernant la requête
d'avis consultatif que l'organisation maritime consultative inter-
gouvernementalelui a adressée par sa résolution du19 janvier 1959.
Le présent mémoire se propose de faire connaître le point de vue
du Gouvernement italien à ce sujet, et de contribuer ainsi à un
examen objectif de la question.

2. La requête d'avis que l'Assemblée de 1'1.M. C. O. a adressée
à la Cour internationale de Justice par sa résolution du 19 janvier
1959 est d'une importance considérable dans le cadre de lastructure
fondamentale de I'Oganisation et de l'équilibre de ses organes. La
requête dont la Cour a étésaisie est bien simple, car elle est libellée
dans les termes suivants:

<Le Comité de la Sécuritémaritime de l'organisation inter-
gouvernementale consultative de la navigation maritime, élu le
15 janvier 1959, a-t-il été établiconformément à la Convention
portant créationde l'organisme? ii
La requête implique, toutefois, des problèmes délicats d'inter-

prétationet d'applicationlogiqueet systématique. Avant d'examiner
les règlesde l'articl28 de la Convention de Genève du 6mars 1948,
concernant la composition du Comité de la sécurité maritime,
il est nécessairede considérer lescaractères et les fonctions du Comité.
A cet effet il faut avoir égard notamment aux paragraphes a et c
de l'article29 de la Convention susdite.
Aux termes du paragraphe a,
nLe Comitéde la sécurité maritime doit examiner toutes les
questions qui relèvent de la compétence de l'organisation, telles
que les aidesà la navigation maritime, la construction et l'équipe-
ment des navires, les questions d'équipagedans la mesure où elles
intéressent la sécurité,les règlements destinàsprévenirles abor-
dages, la manipulation des cargaisons dangereuses, la réglemen-
tation de la sécuritéen mer, les renseignements hydrographiques,
les journaux de bord et les documents intéressant la navigation
maritime, les enquêtes surles accidents en mer, le sauvetage des
biens et des personnes ainsi que toutes autres questions ayant un
rapport direct avec la sécuritémaritime»220 EXPOSÉ ÉCRIT I)U GOUVERA'EXIENT ITALIEN

D'après le paragraphe c,
«Compte tenu des dispositions de la partie XII, le Comitéde
la Sécurité maritime doit maintenirdes rapports étroits avec les
autres organismes intergouvernementaux qui s'occupent de trans-
ports et de communications, susceptibles d'aider l'organisation à
atteindre son but en augmentant la sécuritéen mer et en facilitant,
du point de vue de la sécuritéeLdii sauvetage, la coordination des
activités danslesdomainesde la navigationmaritime, de l'aviation,
des télécommunications et de la météorologie.>,

Il en résulte donc que deux ordres de compétence sont confiésau
Comité: l'un d'un caractère de technique juridique; l'autre impli-
quant une coordination généraleentre l'activité de 1'1. M. C. O. et
celle des autres institutions internationales, qui ont des tâches ana-

logues ou concomitantes.
Ce rappel aux dispositions qui régissent les compétences du
Comité de la sécurité maritime apparaît indispensable pour
tirer au clair sa position dans la structiirede 1'1.M. C. O. et pour
interpréter les modalités de sa coinposition.
Les organes essentiels de 1'1.M. C.O. sont l'Assemblée, leConseil
et le Comité de la sbcurité maritime. Mais, tandis que l'Assemblée
ne se réunit que tous les deux ans et qu'elle exerce des fonctions
géné~iyztee st, alors que la direction générale de l'organisation
revient au Conseil, le Comité de la sécurité maritime est l'organe
iminemiiit?iit tcclinii~iie, c'est-à-dirc il est uri prol)uls<:iir
(lel'acti\.itdt:I'Organisatiun, ccliiiqicrplus il,:triiit aiix tï~:liiii<lu~s
de la navigation maritime.
En effet, bien que, aux termes de l'article22 n de la Convention,
les recommandations et les rapports du Comité de la sécurité

maritime sont soumis aux observations et aus recommandations
du Conseil, c'est surtout au Coniité que reviennent l'initiative et
l'analyse dans le domaine technique.
Le Comitéjouit d'une position d'autonomie, car il peut entretenir
des rapports directs avec d'autres Organisations internationales, et
il peut adopter lui-même les mesures nécessairespour s'acquitter
des tâches que la Convention lui a confiées.En outre, les fonctions
du Comiténe se bornent pas à celles qui sont indiquées àl'article29,
mais elles s'étendent à toutes les tâches que la Convention et tout
autre accord international lui attribuent pour ce qui concerne la
sauvegarde de la vie humaine en mer.
Étant donné l'importance et la délicatesse des fonctions du
Comité, on comprend aisément pourquoi la Convention a mis un
soin tout à fait particulier pour établir les modalitésdesa formation.

Elle est régléepar l'article28, qui prévoit ce qui suit:
«Le Comitéde la sécuritémaritime se coiiipose de quatorze
membres élus par I'Asseinbléeparmi les hfembres, Gouvernements
des pays qui out iin intérêt iinportant daIcsquestions de sécurité
maritime. Huit au moinsde cespays doivent êtreceuxqui possèdent EXPOSE ÉCRIT DU GOUVERNEblENT ITALIEN 221

les flottes de commerce lesplus importantes: l'électiondes autres
doit assurer une représentation adéquate,d'une part, aux Membres,
Gouvernements des autres pays qui ont un intériltimportant dans
les questions de sécurité maritime,tels que lesays dont les ressor-
tissants entrent, engrand nombre, dans la compositiondeséquipages
ou qui sont intéressésau transport d'un grand nomhre de passagers
de cabine et de pont, et d'autre part, aux principales régionsgéo-
graphiques. r

3. Il convient de souligner que les membres du Comité doivent
&tre choisis ~armi les DA . .tti ont un intérêitmbortant dans les
yuestions de sécuritémaritinte: ce critère, qui estindiqué tout premier,
est aussi le critèrefondamental sur lequelles autres critèresprévusau
mêmearticle s'insèrent seulement comme une spécification et un
complément. En d'autres termes, la qualité qu'on demande comme
toute première, et à laquelle on peut ajouter les autres, sans en

pouvoir faire abstraction, c'est cet intérêtprépondérant en matière
de sécurité maritime.
Après avoir indiqué ce critère fondamental ct général, l'article 28
indique les critères spécifiques qui fixent la répartition des sièges
au sein du Comité,et à cet effet il prévoit que tout au moins huit
de ces siègesdoivent êtreconfiésaux pays qui possèdent lesmarines
marchandes les plus importantes, alors que, pour les six siègesqui
restent, il énumère d'autres critères, sur lesquels il n'est pas ici
nécessairede s'attarder. Ce qu'il convient de remarquer est que tout
critère spécifique présuppose le critère général susmentionné.

Le concours de ce critère général est requis conjointement, car on
ne saurait admettre que la seule présence d'un critère spécifique
peut permettre de faire abstraction de vérifiersi le critère général
est rempli. En d'autres ternes, il n'est pas suffisant qu'un Etat
possède un tonnage grâce auquel sa marine est classée à la tête
des flottes marchandes; mais il est nrressaire aussi qu'il ait un in-
térêtmarquant en matière de sécurité maritime.
On parvient aisément à ce résultat sur la base de I'interprétation
littérale de I'atticle 28, indépendamment des normales exigences
d'une interprétation systématique et logique du texte en question.

En ce qui concerne I'interprétation littérale de l'acte constitutif
d'une organisation internationale, il faut toujours rappeler ce que
la Cour internationale de Justice a affirmé,d'une façon très nette,
dans l'avis consultatif relatif à l'Admission azix Nations Unies
(C.I. J. Keci~eilrg50, p. 8).
, Nous croyons que le passage suivant demeure toujours fondamen-
tal étant donné qu'il se pose comme un principe inspirateur de la
jurisprudence internationale, valable aussi pour le cas dont il est
question :

(La Cour croit nécessairede dire que le premier devoir d'un
tribunal, appeléà interpréter età appliquer les dispositions d'un
traité, est des'eflorcerde donner effet, selon leur sens naturel et
ordinaire,à ces dispositions prises dans leur contexte. Si les mots222 EXPOSE ÉCRIT DU GOUVERNEMENT ~TALIES

pertinents, lorsqu'on leur attribue leur signification naturelle et
ordinaire, ont un sens dans leur contexte, l'examen doit s'arrêter
là. En revanche, si lesmots, lorsqu'oiileur attribiie lenr signification
naturelle et ordinaire,sont équivoquesou conduisent à des résultats
déraisonnables, c'est alors et alors seulement - que la Courdoit
rechercher par d'autres méthodesd'interprétationce qiie lesparties
avaient en réalitédans l'espritquand elles se sont servies des mots
dont il s'agit. Comme l'a dit la Cour permanente dans l'affaire
relative au Service postal poloiiaisà Dantzig (C. P. J. I., SériB.
no II,p. 39): K C'est un principe fondamental d'interprétation que
les mots doivent êtreinterprétésselon le sens qu'ils auraient nor-
malement dans leur conteste, à moins que l'interprétation ainsi
donnéeneconduise àdesrésultatsdéraisonnablesouabsiirdes. uI)

4. On peut cependant considérer,ad abirndantiain,ce quisuit.
Ces premières remarques sur les attributions du Comité dans le
cadre institutionnel de 1'1.M. C. 0. tious permettent, en effet, de
nous inspirer, pour l'interprétatioii de l'article 28, des éléments
qu'on retrouve dans d'autres articles de la Convention, et surtout
daris l'article29. 11ne fait aucun doute, d'après la Convention, que

la composition du Comité,telle qu'elle dérivedel'élection prévueaux
articles16 et 28,doit correspondre siirtout àsesfonctionstechniques.
Et ce sont les États qui ont des intérêtsprééminents en ce qui
touche à la sécurité maritime, ceux qui, de préférenceaux autres
États, peuvent expliquer utilement ces fonctions.
Or, la sécuritb maritime est uii des buts fondamentaux de
1'1.M.C. O., comme il est prévu à l'articleI a, d'après lequel il
revient à l'organisation d'nencoz~rager l'adoption générale de normes
aussi éZeuée qsue possible en ce qtti concernela sécurité maritime II.
11 ne fait aucun doute que l'interprétation des règles, qui ont pour
objet la création d'un organe spécifiquepour la sécurité maritime,
doit s'inspirer dubut essentiel que toutes les règlesde la Convention
relatives à la sécurité maritime doivent poursuivre.

Nous croyons que les arguments que nous venons d'exposer sont
en parfaite conformité avec la méthode d'interprétation des actes
constitutifs des institutions internationales.qui est suivie d'habitude,
et qui a ététout dernièrement indiquée par un auteur de l'autorité
de Charles De Visscher. En faisant l'analyse de la jurisprudence de
la Cour internationale de Justice en matière d'interprétation des
traités constitutifs d'organisations internationales, il a remarqué
que iila notion qui a étéle mieux dégagéepar nos décisions est celle
du but, de l'objet. de la mission de 130m-nisation elle-mêmeet de
ses orgtiiius<!rraririlii't'!rr:iiiscc.rideI'urilr-udt,siriilil<:coor~lin:itioii
ou iuxt<ri)ositiuii<.iitrcI:ratî (cf.C. i)i:\'ISSCHI:I<f.'i>~l~rbril(rli'ii
jlrd;:ciairédes traitésd20rganisaiioninternationale, dans la :<Rivista

di diritto internazionale I)1958, 11.187).
Cette notion a trouvé son expression la plus claire dans certains
avis donnéspar la Cour internationale de Justice. C'est précisément
dans l'avis de 1949 dans la question des Réparationsdes do~iliizagcs EXPOSÉ ÉCRIT DU GOUVERNEMENT ITALIEN 223

subis au service deshlatioïis Unies que la Cour a fait référenceaux
buts et aux fonctions des Nations Unies. Elle a déclaréque: «les
droits et les devoirs d'une entité telle que l'organisation doivent
dépendredes buts et des fonctions de celle-ci, énoncésou impliqués
par son acte constitutif et développésdans la pratique » (C.I.J.
Recueil 1949 ,. 180).
Analoguement, l'avis rendu par la Cour en 1954 relativement
aux Jugements du Tribunal adnzirzistratifdes Nations Unies marque
très bien l'idée que l'acte constitutif d'une organisation inter-
nationale doit êtreinterprété dans le cadre de ses fins explicites
(C. I.J. Recueil 1954, p. 53) Sur l'importance de cet avis, en tant
qu'il est fondé seulement sur des élémentstextuels et en tant qu'il
n'utilise pas des élémentsextra-textuels, cf. LAUTERPACHT,De

l'interprétation des traités ~idans 1'«Annuaire de YInstitut de
droit international» (vol. 43, 1, 1950, p. 395).
Or, la Convention de Gcnève qui a créé1'1.M. C. O. énonce
précisément, comme nous l'avons dit plus haut, parmi les fins
générales del'organisation celle de la sécurité maritime.

6. Il est donc hors de doute que les organes de 1'1.hf. C. O. et,
en ce cas, l'Assemblée,en faisant leur choix des États qui sont les
plus qualifiésà êtreéluspour former un organe, doivent avoir en
vue surtout les buts indiquésparla Convention. Dans le cas d'espèce,
le but auquel il faut faire référence est précisémenctelui d'éleverle
niveau de la sécurité maritime. On comprend aisément alors pour-
quoi l'Assemblée, tout en faisant son choix dans la sphère des
nations qui possèdent lesmarines marchandes les plus importantes,
ait préféréélired'autres États, au lieu du Libériaet du Panama.
On sait que le tonnage inscrit sous le pavillon du Panama et du

Libéria est remarquable. hfais, en fait de pratique administrative
et d'expériencetechnique en matière de sécuritéde la navigation,
ni leur contribution du passé, ni leur éventuelle contribution de
l'avenir ne sont de nature à désigner cesÉtats comme ayant des
intérêtsparticulièrement importants pour la sécurité maritime.
Ces États ne possèdent pas en effet d'organes nationaux qui
veillent à l'application des règles sur la sécurité maritime. Il est
vrai que tous les deux ont adhéré à la Convention de Londres de
1948 sur la sauvegarde de la vie humaine en mer. Il n'en reste pas
moins que, pour l'accomplissement des obligations prévues par
cette Convention, ils sont obligés d'avoir recours aux services
d'institutions étrangères, tels que le Lloyd's Register of Shipping
et 1'American Bureau of Shipping. Et, encore, ni le Libéria ni le
Panama ne sont outillésde sorte àaccomplir des enquêtesadéquates
sur les sinistres maritimes. Ils ne possèdent non plus un outillage
apte à l'entraînement des équipages, et de nature à leur donner

l'autorité de certifier la capacité professionnelle y relative. D'où la
nécessitépour eux de faire appel, presque complètement, aux
marins étrangers.224 EXPOSÉ ÉCRIT DU GOU\~ERXE~~ENTITALIEN

Dans ces conditions, ni l'un ni l'autre de ces États ne sauraient
prétendre à êtrepris en considération aux fins d'une sélection
internationale, dont le but est précisémentde désigner lesÉtats qui
sont à même dedonner à la sécurité maritime la contribution
maximum. Il va sans dire que pour êtreen mesure de donner une
contribution de ce genre, il faut avoir acquis une remarquable

expérience, et que cette expérience'ne saurait dériver que d'une
large et longue activité directe dans le domaine spécifiquedont il
s'agit. Or, ce n'est pas certes le cas de Panama et de Libéria, qui
sont, tous les deux, des pays où les activités maritimes sont presque
entièrement dans des mains étrangères.

7. Mais, indépendamment des remarques qui précèdcnt et qui
se basent sur des circonstances de fait incontestables, on doit
constater, si l'on en vient au point central de l'étude juridique
concernant l'interprétation de l'article 28 de la Convention, que

l'Assembléea exercé correctement ses pouvoirs.
L'article 28 prévoit l'électiondes quatorze membres du Comité
pour la sécurité maritime,et il ne fait aucun doute que par élection
il faut entendre clioiz. Cela résulted'une façon suffisamment claire
des travaux préparatoires de la Conférencede Genève.
C'est ainsi que dans le projet élaborépar l'United Maritinte
Consultative Council (N. U. Conseil économique et social, doc.
E/Conf. 411du 29 mars 1947).on lit, à l'article 7, Sec. I(devenuen-
suite l'art. 28 de la Convention:11Le Comitéde la Securitémaritime
se compose de quatorze Gouvernements contractants choisis par

1'Assemblé.e.. »
Ce texte a fait l'objet, ensuite, de l'examen du groupe dc travail
pour la sécurité maritime, qui a proposé un nouveau texte (N. U.
Conseil économiqueet social, doc. E/Conf. 4/33 du lermars 1948),
dans lequel on a gardélemot choisis. Cenouveau texte a étépris en
considération par la Conférencemaritime des Nations Unies, qui,
tout en admettant la possibilité de quelques modifications de
rédaction, n'a porté à la phrase susindiquée aucun changement,
ni n'a formuléaucune critique.
C'étaità la suite de la coordination de la rédaction de l'ensemble
de l'article que le mot choisis a étéremplacépar le mot élzrs.Mais,

comme il s'agit d'un changement de rédaction, il n'y a aucun doute
que la nouvelle expression a gardé une valeur équivalente à celle
qu'elle a remplacée (cf. N. U, Conseil économique et social, doc.
E/Conf. 4/SR revue du 12 avril 1948, p. 96).
Il est intéressant de remarquer que, dans les circonstances
susindiquées, la délégation desÉtats-Unis, dans son document
E/Conf. 4/13 du 23 février1948, no 27, contenant des informations
qui avaient étépuisées au <Department of State Bulletin B)a
affirméà la Conférencece qui suit : B Le Comité de la sécurité
maritime se composera de quatorze gouvernements contractants

choisis par l'Assemblée parmi les nations que les questions de EXPOSE ÉCRIT DU GOUVERNEMENT ITALIEN 225
sécurité maritime intéressent le plus, huit d'entre eux doivent être

choisis parmi celles qui possèdent les marines de commerce les plus
puissantes. n
C'est donc la délégation américaineelle-mêmequi a tiré au clair
l'idéedu choix.
8. Mais, mêmeen faisant abstraction des travaux préparatoires,
si l'on prend le mot électiondans sa signification normale, on doit
admettre que la notion du choix est toujours inhérente à l'idéede
l'élection. En tout état de cause, on ne saurait identifier l'idée

d'élection avec une pure vérification statistique.
Si les Parties contractantes de la Convention avaient entendu
statuer que la détermination des huit États aurait dû se référer
tout simplement au classement des mannes marchandes du monde
d'après leur tonnage, ou bien ils l'auraient dit expressément, ou
bien ils auraient employé un mot autre que celui d'élection,qui, en
effet, comme nous venons de le démontrer, implique toujours un
choix.
Il est à remarquer, en outre, que lorsqu'on a voulu se référerau
tonnage, on l'a dit expressément: tel est le cas de l'article 60 de
la Convention, à propos de son entrée en vigueur. Il s'ensuit que
si, en ce cas, on n'a pas voulu mentionner le tonnage, cela signifie

que l'élection, prévue à l'articl28, laisseà l'Assembléeune marge
discrétionnaire de choix des huit États parmi ceux qui possèdent
les marines marchandes les plus importantes.
Cela est d'autant plus vrai que le critère du tonnage est secon-
daire par rapport àcelui de l'intérêtàla sécuritémaritime, et doit
s'accorder avec ce dernier.
On doit enfin apprécier la question dont il s'agit à la lumière
des règles de la Convention de Genève qui concernent son inter-
prétation.
D'un point de vue général,on ne saurait considérer, dans sa
plénitude, le problème d'interprétation dont la Cour a étésaisie sans
se référeraux articles 55 et 56 de la Convention. Il est symptoma-

tique à cet égardque la XVmepartie de la Convention, quiconcerne
le règlement des différendsrelatifsl'interprétation eà l'application
des règles de la Convention, s'intitule aInterprétations il.Sous
cette rubrique, les rédacteurs de la Convention ont entendu pré-
cisément comprendre les différents systèmes par lesquels on peut
atteindre la solution des problèmes d'interprétation.
Or, le premier système indiqué à l'article55 est précisément'
l'intervention de l'Assemblée: «Tout différend sur toute question
surgissant à propos de l'interprétation ou de l'application de la
Convention est soumis à YAssembléepour règlement. II
Les discussions qui ont eu lieu au cours de la première Assemblée

de YI. M. C. O., et l'interprétation de l'article qu'elle a donnée
à une large majorité, sont là pour démontrer que l'Assemblée a
affronté le problème d'interprétation. et ne l'a régléqu'après y
avoir réfléchiprofondément.
16226 EXPOSÉ ÉCRIT DU GOUVERNEMENT ITALIEN
Il est bien vrai que le vote, adoptépar l'Assemblée,ne vaut pas,

d'un point de vue formel, autant que l'activité que l'on peut lui
déférersur la base de l'article 55. Mais il n'en est pas moins vrai
que ce vote a une grande valeur. Il est l'expression de ce pouvoir
d'interprétation qui revient à un organe, par sa vocation meme
appeléà interpréter l'acte institutif de l'organisation.
En effet, mêmeindépendamment de l'article 5j,il est un principe
bien établi de droit international que toute Organisation inter-
nationale est compétente à interpréter son acte constitutif.
Comme on vient de le rappeler, l'Assembléede 1'1.M. C.0. s'est
déjàprononcéesur la valeur et sur la portée du système d'élection
prévu à l'article 28 de la Convention. Il n'est pas douteux, par
conséquent, que la Cour, en exerçant le pouvoir d'appréciation
juridique que la Convention elle-mêmelui confère à son article 56,
doit tenir compte de cette attitude pour formuler une objective
réponse àla requête d'avisdont elle a étésaisie.

9. Sur la base des considérations qui précèdent,le Gouvernement
de la République italienne a l'honneur de résumer son point de
vue comme suit:
I. Le Comité de la Sécurité maritime de l'organisation
intergouvernementale consultative de la navigation maritime
élule15 janvier 1959a été correctementconstituéen conformité
des dispositions de la Convention relative à la création de
l'organisation susdite.

2. L'Assembléede 1'1.M. C. O., en choisissant les membres
du Comité de la Sécurité maritime, a exercé ses pouvoirs
d'une façon légitime.9. LETTER FROM THE AMBASSADOR OF DENMARK TO

THE NETHERLANDS

The Hague, Decernber 4,1959,
13Sophialaan.

Monsieur le Greffier,
1 have the honour to refer to your letter No. 30095 dated August
5. 1959, by which you were so kind as to inform me that by order
of the same date, December 5, 1959, had been hxed as the tirne-
limit \rithin which written staternents mayhc subrnitted by any
State entitled to appear before the International Court regarding
the request for an advisory opinion about the constitution of the
Maritime Safety Committee of the IMCO.
Acting upon instructions from my Governrnent 1 have the honour

to let you know that the Danish Government have been inforrned
about the contents of the Statement subrnitted by the British
Government, and concur in the points of view set out therein.
Accept, etc.

(Signed) Wilhelm EICKHOFF,
Ambassador of Denmark.IO. WRITTEN STATEMENT OF THE GOVERNMENT OF
THE UNITED KINGDOM OF GREAT BRITAIN ANI)
NORTHERN IRELAND

1. Introdzrction

I.The present written statement is submitted by the Govern-
ment of the United Kingdom to the International Court of Justice
in accordance with Article 66 of the Statute of the Court and the
communicatiori GS 1/11j/jg of August j, 1959. from the Acting
Registrarinforming them that the President of the Court had, by
Order of that date, fixed December j, ~gjg,as the time-limit for the
submission of written statements on the question submitted for an
advisory opinion pursilant to the Resolution of the Inter-Govern-
mental Maritime Consultative Organization of January 19, 1959.

2. The question reads as follows:
"1s the Naritime Safety Committee of the Inter-Governmental
Maritime Consultative Organization, which waselcctedon January
15, 1959, constituted in accordance with the Convention for the
Establishment of the Organization?"

3. The election was held pursuant to Article 28 of the Convention,
which is here set out for convenience of referencc:
"(a) The Maritime Safety Committee shall consist of fourteen
Alemberselected by the Assembly fromthe htcmbers,govemments
of those nations havine an im~ortant iiiterest in maritime safe...
of \i.liictinot 1c.stlt:igtsti~1hc tt.tilnrgestsliil~-o\\ii:iti~~iis.
and the reinnindi:rsIi;tit<It.cte(lso 310CIISLI~:t<l<.qii:te. >rv-
seiitatioii of Mcmbers,govemments of othcr nations $th anim-
portant intcrest in maritime safety, such as nations interested in the
supl~lyof large numbersof crews or in the carriage of large nunibers
of bcrthed and uiiberthed passengers, and of major geographical
areas.
(b) Memùersshall be elected for a tcrm of four years and shall
he eligiblefor re-election."

II. History

4. For the purpose of the election of members of the Maritime

Safety Committee, asprovided in Article 28 of the Convention, the
Secretary-General of the Organization in a document dated
January 13, 1959 (IMCO/A.r/\Vorking Paper 5 and Addendum 1),
set out a list of "Merchant fleets of the IMCO members according
to the Lloyds Register of Shipping Statistic:il Tables 1gj8".
Figures of "Registered Tons gross" were given for twenty-five
countries; therc were no figures in the Statistical Tables for six WRITTES STATEXENT OF THE USITED KINGDO>I 2Z9

members of the Organization. The only figures directly relevant to
the present request are those for the countries with the largest
registered gross tonnage in the 1958 Tables. They were as follows:
Kegistered
Countries Tons gross

I. U.S.A.. .................... 25,589,596
2. Great lJritain and Northem lreland ........ 20,285,776
3. Liberia ..................... 10,078,778
4. Norway .................... 9.384330
5. Japan ..................... 5,465,442

6. Italy. ..................... 4,899,640
7. Netherlands .................. 4,599,788
8. I'anama .................... 4.357800
9. France.. ................... 4.337.935
IO. Gerrnany .................... 4,077,475

5. When the Assembly of the Organization considered the election
of members of the Maritime Safety Committee at its Seventh
Meeting on January 14, 1959, it had hefore it the above-mentioned
list, Working Papers 6 and 7 submitted respectively by the United
Kingdom and the United States delegations, and Working Papers
8 and IO submitted by the delegation of Liberia. Working Paper 6
contained a draft resolution suggesting a procedure for the election
of "theeight membersof theMaritirne Safety Committee which shall
be the largest ship-owning nations". The proposa1 was to hold a
separate vote for each of the eight places in the order in which
the nations appeared in the Secretary-General's list and that those

eight nations which first received a majority of votes in favour
should be declared elected. In Working Paper 7, the United States
delegation suggested postponement of the election until the Second
Assembly, and the establishment of a Provisional Maritime Safety
Committee open to al1 Members of the Organization. It pointed out
that participation in the work of the provisional Maritime Safety
Committee would demonstrate which countries actually take the
most interest in maritime safety and that the delay would give
time for the legal examination and resolution by agreement of
differences of view that had arisen as to the interpretation of
Article 28.

6. Working Paper 8, dated January 13. 1959, contained a draft
resolution proposed by the delegation of Liberia. Among its
consideranda, the draft resolution, after referring to Article 28 of
the Convention, recited that "questions may be raised as to the
intcrpretation of the expression 'ship-owning nations' and as to the
nature of the evidence by reference to which the size of a ship-
owning nation shall be determined". It also pointed out that no
uniform rulc prevails in the maritime 1au.s of the Members of the230 WRI'ITEN STATEhlENT OF THE UNITED KISGDOM

Organization as to the nature of the connexion between a \,essel
and the State under whose flag it sails. It further recited that "the
difficulties of identifying the nationality of thc beneficial owners
of vessels oivned by corporations are so great as to preclude the
Assembly from adopting ownership by nationals as the criterion
of a ship-oivning nation". After a reference to Article 55 of the
Convention, the draft resolution then proposed tliat the Assembly
shall resolve:

"That for the purposesofArticle 28,the eight largest ship-oaning
nations shall be determined by reference to the figures for gross
registered tonnage as they appear in the issue of Lloyd's Register
of Shipping current on the date of election."
7. In Working Paper IO, dated lanuary 14, 1959. the delegation
of Liberia proposed certain amendments to the draft resolution in

Working Paper 6 submitted by the United Itingdom. The effect of
the proposed amendments would have been to retain the preanible,
then to insert the automatic test for determination of "the eight
largest ship-owning nations" proposed in Working Paper 8,
identify them by name aç the United States of America, the
United Kingdpm, Liberia, Norivay, Japan, Italy, the Xetherlands
and Panama, provide for a separate vote on each in the order in
ushichthey appear in the Secretary-General's list (Working Paper 5)
and :

a majonty of votes, they shall be declared to have been elected as
the largest ship-owningnations."

8. At the seventh meeting of the Assembly on January 14, 1959,
the representative of the United Kiiigdom observed that Liberia
and Panama were in a special position. He observed that, while
they had a large registered tonnage they were not, at present, in a
position to make any important contribution to maritime safety

and could not properly be said to have "an important interest in
maritime safety" within Article 28 of the Convention. He also
maintained that they were not tmly among the "largest ship-
owning nations" because for that purpose vessels had really to
belong to the countries in question, iirhich was obviously not the
case \\rith Panama and Liberia. (Summary Record, pages 2-3.)
g. The representative of Liberia, on the other hand, maintained
that the electionunder Article 28 was "not an election in the usual
sense of the word" and that, once the eight nations had been
determined in accordance with the criterion proposed by Liberia,

the Assembly was bound to elect tliem. (Summary Record, pages
5-6.) He also said that the criterioil of the nationality of the owners
was inacceptable. (SummaryRecord, page 6.) He added that if the
Liberian amendments to the United Kingdom draft resolution
were not accepted, he would be prepared to suhinit to the Court WRITTEN STATElIEST OF THE USITED KISGDOY 231

questions as to whether either "gross tonnage" or "the nationality
of the ship-owners" should be the criterion and in both cases
whether it would be legitimate for Liberia to he elected to the
Maritime Safety Committee. (Summary Record, pages 6-7.)
10. The representative of Panama shared the opinion expressed
bythe representative of Liberia and said that his country's interests

were similar to those of Liberia. (Summary Record, page 8.)
The ensuing debate turned largely on the United States proposal
for setting up a provisional Maritime Safety Committee (Working
Paper 7) which was rejected by 14 votes to 12, with 2abstentions.
II. At the end of the meeting, the representatives of the United
States and Liberia jointly submitted amendments (\Varking Paper
II) to the United Kingdom proposa1 (Working Paper 6) \vhich
would have had the effect of declaring by resolution the members

of the Maritime Safety Committee to be elected in accordance with
Article 28 of the Convention as the eight largest ship-owning
nations should be determined by reference to the figures for gross
registered tonnage as they appear in the issue of Lloyd's Register
of Shipping Statistical Tables current on the date of the election,
i.e. the United States of America, the United Kingdom, Liberia,
Norway, Japan, Italy, the Netherlands and Panama. In other
words, if these amendments had been adopted there would have
been no election in the ordiuary sense of the word, but an automatic
determination according to the figures in Lloyd's Register of
Shipping Statistical Tables.

12. The debate on Working Papers 6 and II continued at the
eighth meeting of the Assembly on January 15, 1959. It appears
from the record that the central issue was whether Liberia and
I'anaiii~ stiould or should nut autoniaticall!. t)~.<.uinriicnibcri of
ttic \laririme S:ifct~'~~iii~iiiton the basi~indicated in n:ir:inrauh
II above. ~oweve;, the three parts of the amendments i; W;khg
Paper II were rejected by the Assembly by 17 votes to II. The
representative of Liberia therenpon proposed a reference to the
Court for its opinion on two alternative criteria to be applied
automatically under Article 28 and whether the Assembly was

under a duty to elect Liberia and Panama to the Maritime Safety
Committee. Pending receipt of the Court's opinion, the proposal
suggested that the Assembly should establish an Interim Committee
on Safety at Sea, open to al1Rlembers of the Organization. As the
President of the Assembly pointed out (Summary Record, page g)
the effect of the Liberiau proposa1would have been to suspend the
elections to the Maritime Safety Committee. In accordance with the
President's ruling, the United Kingdom draft resolution (LVorking
Paper 6) was then put to the vote. It was adopted by 18 votes to9
with I abstention.

13. In accordance with the Kesolution (IMCO/A.I/Resolution 9)
adopted on January 15, 1959, the Assembly proceeded to vote for7-32 \\"RITTESSTATEMENT OF THE UNITED KIXGDOXI

the election of 8 countries to the Maritime Safety Committee as the
largest ship-owning nations under Article 28.The vote was taken
by roll-call. The results were as follows:
The United States of America was elected bv 27votes to none.
with one abstention. ",
The United Kingdom of Great Britain and Northern Ireland

was elected by 27 votes to none, with one abstention.
The vote on Liberia was II in favour, 14 against, with 3
abstentions, and Liberia was not elected.
Norway was elected by 25 votes to none, with3 abstentions.
Japan was elected by 25 votes to none, with3 abstentions.
Italy was elected by25 votes to none, with 3 abstentions.
The Netherlands was elected by 25 votes to none, with 3
abstentions.
The vote on Panama was 9 in favour, 14 against, with 5
abstentions, and Panama was not elected.
France was elected by 23 votes to 2,with 3 abstentions.
The Federai Republic of Germany was elected by 23 votes to2.
with 3 abstentions.

14. Thus six members were elected by ovenvhelming majorities
with no opposition. Two members, France and the Federal Republic
of Germany, were elected bylarge majoritiesand opposition by only
two representatives, namely those of Honduras and the United
States, and the candidature of Liberia and Panama was rejected.
In other words, in place of Liberia and Panama, which appear among
the top eight in the Lloyd's Register of Shipping Statistical Tables,

the next two in the Table, France and the Federd Repuhlic, were
elected. The representative of the United States explained that he
had only opposed the election of France and the Federal Republic
to be consistent with the legal principle which he had maintained.
The representative of Liberia said that the elections were nul1and
void "since Liberia and Panama had not been elected to rnember-
ship of the Maritime Safety Cornrnittee to which they were legally
entitled under Artic28 ofthe Convention" (Summary record,^. 21).

15. At its 9th meeting on January 15. 1959, the Assembly
elected the remaining six members of the Maritime Safety Com-
mittee which was then declared elected with the following member-
ship:
United States of America
United Kingdom of Great Britain and

Northern Ireland
Norway
Japan
Italy
Netherlands
France WRITTEN STATEMENT OF THE UNITED KINGD0.M 233-

Federal Republic of Germany
Argentina
Canada
Greece
Pakistan
Union of Soviet Socialist Republics
United Arab Republic

(Summary Record p. 6.)On the initiative of the representative of
Liberia there was then some discussion about reference to the
Court for an Advisory Opinion on the legal issues whichhad
arisen in connexion with Article 28 of the Convention, but the
matter was deferred until the next meeting of the Assembly.

16. At its 10th meeting on January 16,1959, the Assembly
resumed discussion of the election of members of the Maritime
Safety Committee and the failure of the Assembly to elect Liberia
and Panama. There was general agreement that the controversy
arising out of the non-election ofthese two States should be the
subject of a request for an Advisory Opinion, but there were
differences of view as to the questions which should be put to the
Court. The representative of the United Kingdom suggested the
following questions:

"(1)3lust the 'eight largest shipowning nations' he detennined
according to the tonnage on the national register?
(2)IfSO, is the Assembly under a legal obligation to elect to the
Maritime Safety Committee the governments of the nations
having the largest registered tonnage?" (Summary Record,
page54
The representative of Liberia. however, did not think that this
suggestion would cover al1 the questions originally raised by the
Liberian delegation (see paragraphs6 and 9 above). The Assembly
decided to try to resolve these differences by asking its Legal
Committee to formulate suitable questions.

17. The matter was not resolved by the Legal Committee, but,
asa result of private talks, the delegations of Liberia, Panama and
the United Kingdom were able to submit the joint draft resolution
in Working Paper 20. At the eleventh meeting of the Assembly
on January 19,195 9he resolution was adopted with one abstention.
The resolution refers to the differences of opinion that had arisen
as to the interpretation of Article 28 (a) of the Convention and to
Article56 of the Convention. It then resolves to request an Advisory
Opinion on the questions set out in paragrap2 above and instmcts
the Secretary-General to place at the disposa1 of the Court the
relevant records of theFirst Assembly and its Committees.

18. The first meeting of the Maritime Safety Committee, as
constituted by the first Assembly of IMCO, was held on January19,
1959, "th the participation of al1 its members. The Maritime234 \!'RITTESSTATEhIEST OF THE UNITED KINGDOX

Safety Committee then elected its officers, adopted provisional
rnles of procedure, took certain decisions relatiiig to its initial
work programme and decided to hold its next meeting in the second
half of November, 1959.(IMCO/A.I/RISC/SRI of January 19, 1959.)

III. Inter$retationof theQttestion

19. Ttis clear from the Assembly'sresolution of January 19,1959,
that the Court was intended, when answering the question subrnit-
ted, to interpret it in the light of the differences of opinion which
had arisen at the first session about the interpretation of Article
28(a) andtotakeinto account the course of events in the Assembly
and its Committees.
zo. The question asframed asks the Court whether the Maritime

Safety Committee elected on January 15, 1959, is constituted in
accordance with the Convention. The question, however, was not
intended to impose a roving enquiry on the Court. In the first
place, it relates directly to the interpretation of Article 28 (a).
Secondly, it arises out of and is directly dependent upon the non-
election of Liberia and Panama. The essence of the question,
however framed, is whether, upon a true interpretation of Article
28 (a), the Assembly was under a legal obligation to elect Liberia
and Panama to the Maritime Safety Cornmittee, and, if so, whether
the constitution of the Committee without them was contrary to
the Convention.

21. Accordingly, the answer to the question depends on whether
a definite criterion is to be applied automatically to determine the
election of "the" eight "largest ship-ouning nations" or whether in
electing eight of the largest ship-owning nations the Assembly is
left some measure of discretion. In accordance \trith the Advisory
Opinion of the Court in the case concerning the "Admission of a
State to the United Nations (Charter Article 4)" (I.C.J. Kefiorts
1947-1948,p. 57at p. 65)it isforthe membersin each case to exercise
their judgment \\lth complete liberty, ulthin the scope of the

conditions prescrihed, and the competent organ, acting subject to
those conditions, is entitled to reject the candidature of a parti-
cular State.
22. If, on the other hand, a State claims a legal nght to he
"elected". it must show two things. It must establish, first, that
"election" is dependent on an automatic criterion, and, secondly,
that the criterion applies to itself. In an attempt tomeet these two
conditions, it \vassuggested by the delegation of Liberia, in Working

Paper 8, that the criterion for determining the eight "largest ship-
owning nations" should be "the figures for gross registered tonnage
as they appear in the issue of Lloyd's Register of Shipping current
on the date of elections". A possible alternative, suggested by and
declared unacceptable by the representative of Liberia was "the WRITTEN STATEMENT OF THE UNITED KINGDOSI 235
nationality of the ship-owners" (IMCOSeventh Meeting, Summary
Record, pages 6-7). In the submission of the Government of the

United Kingdom, while these two suggested criteria no doubt
should be taken into account in the course of elections to the Mari-
time Safety Committee, neither of them provides an automatictest
entitling the eight members of IMCOso determined to be "elected"
to the Committee.

IV. TheSignificanceof Lloyd's

Register O/Shi$ping Statistical Tables

23. For the purpose oftesting the claim made onthe bais ofLloyd's
Register of Shipping Statistical Tables, it is necessary to take into
account the nature of those Tables. They are prepared by the
Lloyd's Register of Shipping and published each year in its Annual
Report. Lloyd's Register of Shippingis a non-governmental Society
founded in the United Kingdom in 1760, and reconstituted in 1834.
It was established for the purpose of obtaining for merchants,

shipowners and insurance undenvriters faithful and accurate
classification of merchant shipping. The Society's Register Book,
printed annually, contains names, dimensions, port of registry,
flag identity and other nsefui particulars relating to al1 sea-going
merchant ships of the world of IOO tons and upwards. It also
includes particulars of classification of ships classed by the Society.
The Society's classification covers a vast cross-section of the world's

shipping.This classification is based upon reports from the Society's
surveyors submitted to its Committee. Other information is
obtained from the owners. The Register Book, based on such reports
and information and particulars supplied by Governments, is
prepared on the sole responsibility of the Society.

24. The tonnages set out in IMCO/AI/Working Paper 5 were
taken from Table 1 "Merchant Fleets of the World in Lloyd's
Register Statistical Tables 1958. (Copy attached as Appendix Al.)
These Tables are based on the gross tonnage of ships entered in
Lloyd's liegister Book as printed and published in July and the
tonnages are those registered in and flying the flag of the country
concerned2. Thus a ship owned by a Panamanian Company and
registered in Liberia (a not uncommon phenomenon) is shown in

the Table as Liberian. In other words, the basis of these Tables is
' Not reproduced. [Notc by the Regislry.]
The explanatory footnote to the index to the Statistical1958lreads as
f0llows:
"These Tables are based on the gros5 tonnage of ships entered in Lloyd's
RegisterBook as printed and published in July. and do not include ships of
less tha~oo tons gross except in Tables 8 g.d
Sailing ships and non-propelcraft arenot included except in Tabl8,
g.ioand iz.
Sailing ships fitted with auxiliary power are included in the figures indicated
for Steamships or Motorships according to the type of the auxiliary engines."236 WRITTES STATEhlEST OF THE UNITED KINGDOAI

not ownership by any country or person, but registration in a
particular country.
25. In many countries, the right to register a ship is limited to
nationals, andit is a matter of general knowledge that the bulk of
the shipping on the register is owned both nominally and bene-
ficially by nationals of the country in which the ships are registered.
This is not true of al1 States. In some States registration is by one
means or another made easy for foreign nationals. In such cases
the links between a ship and its beneficial owners on the one hand
and the country of registration on the other are, for the most part,

extremely tenuous. They amount to little more than the registration
of the ship and the façade of a subsidiary company, the real owner
or the parent company being a national of another State. These are
not matters which are recorded in any of the statistics compiled
by Lloyd's Register of Shipping. Nevertheless, the broad facts are
common knowledge and, in maritime circtes, a great deal is known
and generally accepted about their flags and the beneficial owner-
ship of the ships registered under them. It is a matter on which
the hfembers of the Organization are capable of forming a judgment
for the purpose of determining which are the "largest ship-owning
nations" when electing the members of the hfaritime Safety Com-
mittee under Article 28 (a) of the Convention.

V. Interpretation of Article 28(a)

26. In the submission of the United Kingdom Government
Article 28 (a) of the Convention should be interpreted in the light
of the purposes of the Organization and of the hfaritime Safety
Committee. By Article I the purposes of the Organization include:

"(a) to provide machines. for CO-operationamoiig Govemments in
the field ofgovernmeutal regulation and practices relating to tech-
nical matters of al1kinds affectingshipping engagedin international
trade and to encourage the general adoption of the highestpracti-
of navigation". in matters concerningmaritime safety and efficiency

27. By Article 29 (a) the Maritime Safety Committee has "the
duty of considering any matter within the scope of the Organization
and concerned with aids to navigation, construction and equip-
ment of vessels, manning from a safety standpoint, rules for the
prevention of collisions, handling of dangerous cargoes, maritime
safety procedures and requirements, hydrographic information,
log books and navigational records, marine casualty investigation.

salvage and rescue andany other matters directty affecting maritime
safety".
28. Although the Maritime Safety Committee has other duties,
for present purposes it is sufficient to refer to those specified in
Article 29 (a). From these it is apparent that its duties cover a wide WRITTEN STATEMENT OF THE UNITED KINGDOM 237

and technical field, the fulfilment of which requires a high degree of
expert technical knowledge. Since it is among the purpoçes of the
Organization to encourage the general. adoption of the highest
practicable standards in matters concerning maritime safety, it
follows that the intention of the Convention is that the Maritime
Safety Committee should be so composed as to give it the greatest
possible chance of attaining the high standards which are the
objective of the Organization.

29. Therefore, it is reasonable to assume that the provisions of
Article 28 (a) are designed to secure the election to the Maritime
Safety Committee of those Members which are likely to have the
best qualifications for carrying out the duties of the Committee. It
is unlikely that this objective would be achieved by any automatic

test.
30. Accordingly, it is submitted that, in providing for the
election of the fourteen members of the Maritime Safety Committee,

the intention of Article 28 (a)was to leave a measure of judgment
to the Assembly of the Organisation. In this way, the risks attendant
on any automatic test would be avoided and the Assembly would,
within the conditions laid down, be able to ensure that the best
qualified Members were chosen for the Committee.

31. According to Article 28 (a),al1 fourteen members are to be
elected. The words used are "the Maritime Safety Committee shall
consist of fourteen members elected by the Assembly". They are
to be elected "from the Members, Governments of tbose nations
having an important interest in maritime safety". An indication is
then given of the two classes of Members from which they are to be
elected, that is to Say first the "largest ship-owning nations" and
secondly "Govemments 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 largenumbers of berthed and
unberthed passengers and of major geographical areas". It is clear
from the text of Article 28 (a) that the process of election must

apply to the choice of both these classes of Members.
32. In its natural and ordinary sense the word "elected" implies
the exercise of a choice or judgment. It does not imply the appli-
cation of an automatic test.

33. This interpretation of the word "elected" is confirmed by
reference to standard English dictionaries. In the Shorter Oxford
Dictionary, first edition,1933. the word "election" is defined as:

"The action of choosingfor an office,dignity or position; usually
bypote."
The choice by popiilar vote of members of a representative
assembly e.g. the House of Gommons."
"The exerciseof deliberate choice."~38 WRITTEN STATEXENT OF THE UNITED KIIIGDOX

In the Universal Dictionary of the English Language edited by
H. C. Wyld, 1932, "election" is defined as "choice, selection". In
the Dictionary of English Law, 1959, edited by Earl Jowitt, late
Lord High Chancellor of Great Britain, the word "election" is
defined as "the right, and also the duty, and the act, of choosing".
34. To speak of an automatic "election" would be a contradiction
in terms which would distort the natural meaning of the word
"elected". It would be contrary to the jurispmdence of the Court
to place such a strained meaning on the word "elected" unless
there were very strong reasons for doing so. As the Court said in its
Advisory Opinion on "Admission of a State to the United Nations
(Charter, Article4)". "to warrant an interpretation other than that
which ensues from the natural meaning of the words, a decisive
reason would be required which has not been established." (I.C.J.
Refiorts1947-1948, p. 57 at p. 63.)

35. As pointed out by the Court in the Ambatielos Case (Second
Phase) (I.C.J. Re$orts I953, p. 30). it has been said over and over
again that words should be construed in their natural and ordinary
meaning. This principle of interpretation was also expressly con-
firmed by the Court in its Opinion on "The Competence of the
General Assembly for the Admission of a State to the United
Nations" (I.C.J. Refiort1950. p. 4 at p. 8) when it quoted the
following statement made by the Permanent Court in the case con-
cerning the Polisli Postal Service in Danzig (P.C.I.J., Series B,
No. II, p. 39):

interureted in the sense which thev would norrnallv have in their
contêxt,unless such interpretation would lead to-something un-
reasonahle or absurd."

In the present case, to interpret the word "elected" in its natural
and ordinary meaning so as to give a measure of choice to the
Assembly would be reasonable. On the other hand, to Say that
Article 28 (a) provides an automatic test for the "election" of
eight members of the Maritime Safety Committee would be likely
to lead to unreasonable results. Therefore, there is no ground for
departing from the interpretation of the word "elected" in its
natural and ordinary meaning.

36. According to Article 28(a), the basic qualification for election
to the Maritime Safety Committee is "an important interest in
maritime safety". This qualification has to be fulfilled whether the
State is seeking election as one of the "largesthip-owning nations"
or as one of the "other nations". What amounts to an important
interest in maritime safety for the purposes of Article 28 (a) is a
matter for the judgment of the Assembly and in the last analysis
for each Member of the Assembly to be expressed in the process of
the election. It is submitted that the Assembly is not legally obliged WRITTEN STATEMENT OF THE UNITED KINGDOM 239

by Article 28 (a) to elect any particular eight Members merely on
the ground that they have the largest total gross tonnage on their
shipping register or by virtue of any other similar rigid test.

37. It may be presumed that the expression "the largest ship-
owning nations" was used deliberately. It is at once obvious that
this expression has no apparent clear-cnt or technical meaning.
Read literally it refers to ships owned by a nation, but everybody
knows that nations, whether in the sense of countries or the
population as a whole, do not own ships. Therefore, it is fair to
assume that the expression was intended to have some meaning
other than ownership by the country., Another meaning which
might be attnbuted to the expression is ownership by States, but
since comparatively few States own large fleets of merchant shipping
it is apparent that this isnot what wasintended.Againit issuggested

that registration by a State may be the test to be applied. However,
as has been explained above, registration and ownership are two
different things. If those who drafted the Convention had intended
to lay down the test of registration, it would have been easy to use
words more appropriate than "ship-owning nations". Indeed where
it has been intended to refer to registered tonnage appropnate
words have been used. Thus in the case of Article 60 of the Con-
vention the test laid down in connexion with the entry into force of
the Convention is the acceptance by seven States each having "a
total tonnage of not less than ~,ooo,ooo gross tons of shipping".
The words used in Article 60 in connexion with entry into force
where an automatic test is required correspond exactly with the
language normally used in connexion with the registration of

shipping, i. e. total gross tonnage. In Article (a), however, these
words have been avoided and whatever may be the meaning of
"sh'ip-owning nations" it is clear that they do not refer to gross
registered tonnage.
38. It is submitted that the intention of these 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 seose. For this purpose, the
Members of the Assembly have to rely on their own knowledge and
their own judgment as to where the real or beneficial ownership
lies and they are not bound by any automatic test, whether
it be that of registration or, as has been tentatively suggested, that
of the amount of shipping nominally owned by the nationals of a
particular State. It is submitted that 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.240 \\'RITTEX STATEMEST OF THE VNITED KIXGDO>l

VI. Articles 55 and 56 of the Convention

39. It is normal for the Court to take into account the decisions
of an international organization in the interpretation of its own
constitution. There have been several cases in which the Court has
taken into account the practice of the organization concerned.
Thus, in its Advisory Opinion in the Injuries Case, the Court said:

"Practice-in particular the conclusion of conventions to which the
Organization is a Party-has confirmed this character of the
Organization ...",that is to say an organization having international
personality. (I.C.J. Reports 1949, p. 179.) In the same Opinion
(at p. 180) the Court said "The rights and duties of an entity such
as the Organization must depend upon its purposes and functions
as specified or implied in its constituent documents and developed
in practice." Again, in its Opinion on the Competence of the
General Assembly for the Admission of a State to the United
Nations, the Court said: "The organs to which Article 4 entrusts
the judgment of the Organization in matters of admission have
consistently interpreted the text in the sense that the General
Assembly can decide to admit only on the basis of a recommendation

of the Security Council." (I.C.J. Reports Ig50. p. 9.)
40. It is true that in the present case there has been only one
election. Xevertheless, it is submitted that account should be taken

of the deliberate adoption by the Assembly of rules of procedure
for the election in Resolution g of January 19, 1959, that the
election was carried out in accordance with that procedure and
that each Member of the Maritime Safety Committee was elected
by a very large majority of the 1IIembersof the Organization after
a considerable debate in the Assembly on the interpretation and
application of Article 28 (a).

41. It is an elementary principle that the competent organs of
an international organization have the right to interpret their
constituent instruments so far as is necessary for the purpose of
exercising their functions. In the case of the present Organization,
the power of interpretation and application is expressly conferred
on the Assembly. Article 55 provides "any question or dispute
concerning the interpretation or application of the Convention
shall be referred for settlement to the Assembly or shall be settled
insuch other manner as the parties to the dispute agree". This does
not mean tliat the mere making or a decision by the Assembly is

conclusive as to its own legality but it does, in the submission of the
Government of the United Kingdom, reinforce the presumption in
favour of the interpretation on mhich the Assembly has based its
decision. Therefore, notwithstanding a reference to the Court in
accordance with Article 56 of the Convention, it is submitted that
due weight should be given to the decision taken deliberately by the WRITTEN STATEhfENT OF THE UNITED KINGDOM 241

Assemhly not to elect either Liberia or Panama to the Maritime
Safety Committee.

VII. Conclusions

42. For the ahove reasons the Governmcnt of the United King-

dom submit
(1) that the Assemhly of the Organization was not, by virtue of the
provisions of Article 28 (a)of the Convention, under a legal
obligation to "elect" either Liberia or Panama to the Maritime
Safety Committee, and

(2) that the Maritime Safety Committee of the Intergovernmental
Maritime Consultative Organization elected on January 15,
1959, "as constituted in accordance with the Convention for
the establishment of the Organization.

Appendix A

LLOYD'S REGISTER STATISTICAL TABLES 1958
MERCHANT FLEETS OF THE W0RLD.-TABLE 1

[Not ~ep~oduced]11. WRITTEN STATEMENT OF THE GOVERNMENT OF

THE KINGDOM OF NORWAY

I. By letter of August 5, 1959. the Acting Registra of the Inter-
national Court of Justice informed the Norwegian Goverument
that the President of the Court had fixed December 5,1959, as the
time-limit for the submission of written statements othe question
submitted for an advisory opinion by the Inter-Goverumental
Maritime Consultative Organization (hereinafter referred to as
IMCO) pursuant to the resolution adopted by the Organization's
Assembly on January 19, 1959.
2. The request for an advisory opinion was made by IMCO in a

letter of March 23, 1959, which was received in the Registry of the
Court on March 25, 1959. The question raised reads as follows:
"1s the Maritime Safety Committee of the Inter-Governmental
Maritime Consultative Organization,which was elected on5 Jan-
uary 1959.constituted in accordance with the Convention for the
Establishnient of the Organization?"
The Norwegian Government wishes to avail itself of the oppor-

tunity which it has under Article 66, paragraph 2, of the Court's
Statute, to submit a written statement in regard to the question
at issue.
3. In the course of the deliberations in IMCO's Assembly which
resnlted in the election, on the 15th January 1959, of Argentina,
Canada, the Federal Republic of Germany, France, Great Britain,
Greece, Italy, Japan, the Netherlands, Norway, Pakistan, the
Soviet Union, the United Arab Republic and the United States to
membership of the Maritime Safety Committee, it was contended
that Liberia and Panama were entitled to membership and that
the Committee would not be constituted in accordance with the
IMCO Convention if they were not elected.

4.Inasmuch as there was advanced no other contention of a
constitutional kind which would tend to invalidate the elections
to the Maritime Safety Committee which actually took place, the
Norwegian Government assumes that it is to the question of the
correctness or incorrectness of this contention that the International
Court is expected to address its scrutiny.

5. The arguments adduced in favour of this contention were
based upon the words: "of which not less than eight shall he the
largest ship-owning nations" in Article 28 (a) of the Convention.
viewed in conjunction with the statistical table furnished by
the Secretary General of the Organization (IMcO/A.~/Working
Paper 5 and Add. 1, 13 January 1959) which showed Liberia and
Panama to rank respectively as No. 3 and No. 8 on the list of WRIïTEK STATEMENT OF THE NORWEGIAN GOVERNhIENT 243

IMCO countries, enumerated in descending order according to the
amounts of gross tonnage of ships flying their tlags.
6. One argument in favour of the. right to membership for
Liberia and Panama in the Maritime Safety Committee is that the
two countries by virtue of the mere fact of ranking among the first

eight on the flag-tonnage list have a right to membership.
A subsidiary argument isthat even if Article 28 (a) must be so
constrned as to leave some margin of discretion in regard to the
election of the 8 members of the Maritime Safety Committee which
shall be "the largest ship-owningnations", that margin was exceeded
by the Assembly when it failed to elect Liberia and Panama to
membership.
These two lines of arguments will in the following be dealt
with seriatim.

7. In dealing with the argument which infers from the wording
of Article 28 (a)an automatic right for the eight first countries on
the flag-tonnage list to membership in the Maritime Safety Com-
mittee, it is necessary to consider (a) what procedure the Article
provides for determining the composition of the group of eight
countries which shall be "the largest ship-owning nations", and
(b) the relevance in this connection of the above-mentioned flag-
tonnage list.

8. In regard to the first ofhese two questions it is important to
note that Article 28 (a) lays down that "the Maritime Safety Com-
mittee shall consist of fourteen Members electedby the Assembly".
It is snbmitted that the use of the word "elected" is incompatible
with the theory that it should be mandatory on the Assembly to
give the eight seats reserved for the "largest ship-owning nations"
to the eight countries at the top of the flag-tonnage list. An election
involves by definition a choice between alternatives.
In this connection it is of interest to note that the word "elected"
is used in Article 28 (a) not only in regard to the eight members of
the Maritime Safety Committee "which shall be the largest ship-

owning nations", but also in regard to the remaining 6 members
which are to ensure adequate representation 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
numhers of berthed and unberthed passengers, and of major
geographical areas". It is clear that the criteria given in regard to
the designation of these 6 members of the Maritime Safety Com-
mittee are not susceptible of an automatic application. And it
would be strange, to Say the least, if the word "elected" were used
in one and the same sentence of the Convention in two fundamen-
tally different senses.

9. The second question mentioned under point 7 above concerns
the relevance for the application of the criterion: "not less than 244 \\'RIlTEN STATEMEKT OP THE SOR\\'EGIAN GOVERNMENT

eight shail be the largest ship-owning nations", of the statistical
table fumished by the Secretary-General of the Organization in
regard tothe gross tonnage of ships flying the flags of the individual
IhlCO countries.
ln this connection it should be sufficient to point out that Article
28 (a) uses the words: "largest ship-owning nations", which is

something entirely different frorn the nations with the largest
tonnage of ships amder theiv jfags. It is the interest evidenced by
ownership of ships, rather than sucli interest which follows frorn the
mere fact that a rnember State has a certain aniount of tonnage
zanderits flag, \vhich is relevant for the application of this criterion.
On the basis of the above reasoning it is submitted that it is
entirely unwarranted to infer, from the wording of Article 28 (a),
an automatic right for the eight first countries on the flag-tonnage
list to meinbership in the Maritime Safety Committee.

IO. It remains to be considered whether the subsidiary argument
mentioned under point 6 above is valid and conclusive. If Article
28 (a) must be so construed as to lcave some margin of discretioii
in regard to the election of the 8 inernbers of the Naritirne Safety
Comrnittee which shall be "the largest ship-owning nations", \vas
that margin exceeded by the Assembly when it failed to elect
Liberia and Panama to membership?

In answering this question it would seem natural to use the
flag-tonnage list as a point of departure and to ascertain to what
extent the tonnage figures giveii would have to be corrected in order
to arrive at figures which would take due account of the relevant
criteria in Article 28 (a).
It is elear from what has bcen statcd under,point 8 that a first
necessary correction woiild be to reduce the tonnage for each
country by the amount of such tonnage which, although it is sailing
under the flag of that country, is iiot owned by its oationals. This
first correction of the figures on the flag-tonnage list \vould entail

a rather considerable reduction of the figure attributed to Liberia.
II. A further necessary correction \vould be to add sueh amounts
of the tonnage \\.hich is dedueted under the priiiciple enunciated
above and which is owned by nationals of other IMCO countries,
to the figures of such countries subject to such further corrections
as are indicated below.

12. The thus corrected figures would have to be subjected to
still further scmtiny. Up to the prese~it stage the establishment of
the list has been based rnerely upon the criterion that "iiot less
than eight shail be the largest ship-owning nations". This however,
is not the sole criterion for deterrnining the eligibility of a govern-
ment as one of the eight inernbers mentioned first in Article 28 (a).
The Article also provides expressly that theg shall be elected "from
the Members, governrnents of those nations having an important
interest in maritime safety". \!'RITTES STATEMENT OF THE NOR\YEClAN COVERh'MEXi 245

The formulation of this proviso seems to permit t\vo somewhat
different constructions. One possible construction would seem to be
'that the words impose a cumulative condition for eligibility. If that
is the proper construction, it would of course immediately be
evident that the Assembly would have a very wide discretion in
regard to the election of the eight members of the Maritime Safety
Committee which are mentioned first in Article 28 (a).

t\ possible alternative construction is that the words: "nations
haviiig [\\rith] an important interest in maritime safety" are used
merely to explain and clarify the specific requirements wbich are
laid dowri in the paragraph for eligibility to the Maritime Safety
Comriiittee.
It must be clear, in any case, that it would be entirely unwarranted
to construe Article 28 (a) as if the words "from the Members,
governmerits of those nations having an important interest in
maritime safety" were unwritten. It is significant in this respect
that the authors of the convention should have found it necessary
toilse twice in the same paragraph the rather cumbrous expression
concerning "an important interest in maritime safcty", both \vhere
the paragraph specifies the conditions of eligibility to one of the

8 scats and again (it would seem redundantly) where it specifies the
conditions of eligibility to the remaining 6 seats. The purpose of
the repetition must be to stress the importance of this particular
clause.
13.Irrespective of the interpretation which is chosen in regard
to the clause jrhich is considered under point 12,it sliould be clear

that the flag-tonnage list, in order to make it serviceable for the
purpose of Article 28 (a),\vould have to be subjected to still further
corrections. It cannot be assumed that al1 the tonnage owned by
nationals of an IMCO country contributes toits interest in maritime
safety. Corrections must be made particularily in regard to ships
owned by juridical persons incorporatcd untler the laws of one
country, when the beneficial ownership in the ships pertains entirely
or overwhelmingly to nationals of other countries. It would be
unreasonable to include the tonnage of such ships in the tonnage
figures of the countries of which such ship-ou~ning corporations
are nationals.
It is a matter of coinmon knowledge that the overmhelming

majority of ship-o~vning corporations, incorporated under the laws
of Liberia and Panama, bclong in this category, and it is submitted
that IMCO's Assembly is entitled to take these facts into consider-
ation when it is called upon to elect the members of the Maritime
Safety Committee pursiiant to the directives of Article 28(a) of the
IMCO Convention.
14. It follows from the considerations stated above that the

listing of Liberia and Panama among the first eight on the statistical
table furnished by the Sccretary-General of IMCO clid not by itself246 WRITTEN STATEAIEST OF THE NORXVEGIAN GOVERNMEST

and automatically entail a legal obligation for IRICO'sAssembly to
elect Liberia and/or Panama to the Maritime Safety Committee of
the Organization.
It further follows that this flag-toiinage list, in order to become
serviceable for theurpose ofArticle28 (a) ofthe IMCOConvention,
\~ouldhave to be substantidly corrected and that the determination

of these corrections wouid to a large extent be subject to the dis-
cretionary judgement of the Assembly.
In the opinion of the Nonvegian Government there is no justi-
fication for the contention that IMCO's Assembly in failirig to
elect Liberia and Panama to tlie Maritime Safety Cnmmittee,
exceeded the margin of discretion which is given to it by Article
28(a) of the IMCO Convention.

Conclusion

The Maritime Safety Committee of the Inter-Govemmental
hlaritime Consultative Organization elected on January 15, Igjg,
is constituted in accordance with the Convention for the establish-
ment of the Organization. 12. W'RITTEN STATEMENT OF THE GOVERNMENT OF

THE KINGDOM OF THE NETHERLANDS

I.The Netherlands Government desire to snbmit for the
consideration of the International Court of Justice certain obser-
vations with regard to the questionrefcrred to the Court bythe As-
sembly of the Inter-Governmental Maritime Consultative Organiza-
tion (hereinafterreferred to as IMCO) for an Advisory Opinion.

2. The question of law submitted to the Court concerns the
election of theMaritime Safety Committee of the IhfCO (hereinafter
referred to as M.S.C.), which took place on 15th January 1959.
Snch election is governed by Article 28 of the Convention on the
IhfCO. Itappears from the relevant records of the meetings of the
Assembly that some delegations expressed doubts as to whether in
proceeding to the election of the M.S.C. on 15th January 1959, the
Assembly acted in accordance with the provision of Article 28
which prescribes that no less than eight of the members of the
M.S.C. "shall be the largest ship-owning nations".
Other delegations held the opinion that the election was legally

valid and that it was not necessary for the proper functioning of
IMCO to seek an Advisorji Opinion from the International Court of
Justice; since one of the members however desired to obtain such
an Opinion, they did not oppose this proposal.
3.Article 28 (a)of the IMCO Coiivcntion declares that:

"The MaritimeSafety Committeeshailconsistoffourteenmembers
elected by the Assembly fromthe members, Governments of those
nations having an important intercst in maritime safety, of which
no lessthan eight shall be thc largest ship-owningnations, and the
remainder shall be elected so as tonsure adequate representation
of members, Governments of other nations with an important
interest in maritime safety, such as nations interested in the supply
of largenumbers of crews or in the carriage oflarge numbers of
areas." and unberthed passengers. and of major geographical

4. Article 28 (a)may be usefnlly compared mith Article 17 of the
same Convention, which governs the composition of the Council,
another organ of IMCO. Both Articles lay down certain qualifications
which are required in order to he eligible for membership of the
respective organs.
In both cases these qualifications are expressed in terms of

"interests" which "nations" have. Article 17 mentions "interest in
providing international shipping services" and "intercst in inter-
national seaborne trade"; in Article 28 (a)the interest involved is
the "interest in maritime safety".248 WRITTEN STATEMENT OF THE NETHERLANDS GOVERNMENT

Under Article 18 of the Convention twelve of the sixteen members
of the Council are designated by the Council, whereas the other four
members are designated by the Assembly. The members of the
M.S.C. are al1 designated by the Assembly. It is obvious from the
wording of the above-mentionedclauses that they embody directives
addressed to the Council and the Assembly i~ircspect of the folfil-
ment of their tasks to designate the members of the Council and
of the M.S.C. The qualifications referred to in Article17 and 28 (a)
of the Conveiition cannot, by their very nature, be applied
automatically, and, accordingly, the organs called upon to deter-
mine which Governments of the IhICO member States are to be
represented on the Council and the M.S.C. for a specific term eiijoy
a certain discretioii in the application of thearious criteria which
the Convention indicates.

5. Whereas (apart from appendix 1 to the Convention) in respect
of the qualification for meinbership of the Council ("interest in
providing international shipping services" and "interest in inter-
national seaborne trade") the Convention does not give any furtlier
indications as to the jactovswhich are relevant for the designation
of the specific States to be represented in theoiincil, Article 2(a)
does give some more details about what should be taken into
account in determining the "interest in maritime safety". Thus for
eight members the fact of heing a large ship-owning nation is
mentioned in Article 28 (a)as indication of their interest in maritime
safety, whereas for the other members other factors, such as
being interested "in the supply of large numbers of crews" or "in
the carnage of largenumbers of berthed and unberthed passengers"
have to be considered. The first -.oup consists of nations capable
of contrihutiiig Iargely tv tlic tlc\.t:loliment of iiiaritinic saf~.ty.
whilc for rlic other groiil) entirel!, tlifit:r<:ritfactors arc applicahlc.

6. In particular, Article 28 (a) embodies a directive for the
Assembly to the effect that among the fourteen members of the
M.S.C. to be electcd by the Assembly, al1 of which should qualify
as having an important interest in maritime safety, "not less than
eight shall be the largest ship-owning nations". In view of the
discussion which took place in the Assembly before and after it
proceeded to the election of the members of the M.S.C. on the
15th January 1959 the question now submitted to the Court may
be framed as follows:
"Did the Assembly, in electing the United States of America,
the UnitedKingdomofGreat 13ritainand Xorthem Ireland, Norway,
Italy, the Xetherlands, Japan, France and the Federal Republic of
Germany, and in not electing Panama and Liberia, overstep the
limits of the discretion left to iter Article28 (a)?"

7. In order to judge whether or not a specific election took place
in accordance with the Treaty provisions governing the election, it
is obviously necessary to consider the various clauses and the IVRITTEN STATEXEST OF THE SETHERLASDS GOVERS.\IEST 249

object of theTreaty as awhole. What is involved isthe designation of
particularstates as members of an international organ. As thecourt
stated in its Advisory Opinion on the Conditions of Admission of a
State to Membership inthe United Nations (I.C.J. Reports 1947-1948,
p. 64) "the political character of an organ cannot release it from the
observance of treaty provisions ... when they constitute ... criteria
for its judgment". On the other hand, the Court, in the same
Advisory Opinion (ibidem, p. 63) remarked that such treaty provi-
sions do not forbidthe taking into account of any factor which it is
possible reasonably and in good faith to connect with the conditions
laid down therein.

8. In the present case the liberty of appreciation left to the
Assembly is limited in respect of eight members of the M.S.C. by
the condition that they shall have an important interest in
maritime safety as evidenced by their being the largest ship-
owning nations. The application of these criteria is obviously not
a matter of mathematical computation. Xeither the fact of having
"interest in maritime safety" nor the fact of being a "ship-owning
nation" is in itself a factor which can be expressed in mere figures.
Furthermore, in electing the members of the M.S.C., the Assembly
has to apply these criteria in their inter-relationship.

g. In thisconnection, account must be taken of the task entrusted
to the M.S.C. It appears from Articles I(a), 29 and 30 of the IMCO
Convention,in particular Article zg(a), that the M.S.C.is concerned
with preponderantly technical matters relating to navigation.
Accordingly, the requirement that eight of its members should
represent the "largest ship-owning nations" clearly has the object
of ensuring adequate representation of those States which, by
virtue of their long-standing and extensive experience in such
technical matters, are best capable of contributing tothe elaboration

of international standards in the field of maritime safety. The
meaning of the term "ship-owning nation" must be determined in
the light of this object of the establishment of the M.S.C. Conse-
quently, the Assembly is acting in accordance with Article 28(a) of
the Convention when, in electing the eight members of the M.S.C.
under the title of "largest ship-owning nations" it takes into account
the factor of expenence, since this factor can "reasonably and in
good faith" beconnectedwith the conditionsimposed inArticle 28(a).

IO. hloreover, the term "ship-owning nation" is, even if taken
out of its context, ltot a term suitable for legal analysis; it cannot
be decomposed into elements which have any specificlegal connota-
tion. It obviously does not refer to States which are owners of
vessels in the legal sense of the word. Neither does it refer to States
in whose territories a large tonnage of vessels is registered, since
mere registration does not necessarily guarantee the effective
exercise of jurisdiction of the State concerned in technical and other
matters over ships so registered. Neither does registration give any250 \VRITTES STATEMEST OF THE SETHERLANDS GOVERNhlEYI

indication of ownership. Furthermore, even the fact that the
merchant fleet flying the flag of a particular State is owned by
nationals of that State cannotinitself qualify that State asa "ship-
owning nation". Registration and the right to fly the flag and
national ownership of the vesscls nzay, together ii'ith other factors,
be relevant for the determination by the Assembly whether or not
a State can be considered as a "ship-o\r.ning nation"; they do not
either separately or jointly impress upon a State the quality required

in order to be eligible for membership of the Bf.S.C.,or to grant a
State the right to claim such membership.

II. Thc overriding aspect involved in the dcsignation of the
eight members of the M.S.C. ahich represent "the largest ship-
owning nations" is their competence in dealing with the matters
entrusted to the M.S.C., based on the extent to which they control
effectively the application of maritime safety devices in world
shipping. In order to determine which States among the ship-
owning nations are the largest ship-owning nations some bais of
measuremcnt must be applied. In this connection the amount of

tonnage of ships registered in the various countries is a suitahle
starting-point, though by no means the decisive factor. In the
course of the debates with reference to the election of the present
M.S.C. on January 15, 1959, it was contended that registration is
the ody criterion for determining mhether a State is eligible under
the title of "largest sliip-owning nation". As explained above this
interpretation is hased on a misconception ivith regard to the
meaning of the word "ship-owning nation". Apart from that, this
interpretation seems to bc based on the erroneous assumption that
each State is completely free to determine which ships are entitled
to fly its flag and that, for the piirpose of the composition of the
M.S.C.-an international body-the size of a Statc's commercial

fleet should be measured according to such sovereign determination
by that State. As to the latter assumption it woiild seem to need
no elaborate comment that a clause such as Article 25 of the IMCO
Convention, which envisages a representation of Statesin an inter-
governrnental body in accordance with the relative weight of their
interests, cannot be held to make the determination of such weight
simply dependent upoii the national legislation of the State
concerned.
Furthermore, and quite apart from the application of Article 28
of the 1iîlCO Convention, States are not completely free in fixing
the conditions for the right to fly their flag. In this respect it is
significant that Article 5 of the Convention on the High Seas, signed

at Geneva 29th April, 1955, expressly States: "There must exist a
genuine link between the State and the ship; in particular, the
State must effectively exercise its jurisdictioii and control in
administrative, technical and social matters over ships flying its
flag." This provision, which forms part of a Convention adopted as \\'RITTEN STATEMENT OF THE NETHERLANDS GOVERNMENT 251

a codification of the rules of international law (cf. first paragraph of
the preamble), ciearly imposes limitations to the freedom of a State
to determine which ships "belong" to that State.
It is incompatible with the existence of those limitations to
consider, in the application of Article 28 of the IMCO Convention,
the amount of tonnage registered in a State as a factor-let alone
a decisive factor-for determining the eligibility of that State. Ko
account can be taken of registration if such registration does not
correspond to a genuine link between the ship and the State.

It appears from the statistical data that the gross tonnage of
ships flying the flag of members of IMCO-in so far as relevant for
the present purposes-is as follows l:
Counfrics Tonsgross

U.S.A. ............... 25.589.596
Great Uritain and Northern Ireland ....... 20.285.776
Liberia .................... 10.078.778
Nonvay .................... 9.384.830
Japan .................... 5.465.442
Italy. .................... 4.899.640

Netherlands .................. 4.599.788
Panama. ................... 4.357300
France .................... 4.337.935
Gemany ................... 4,077.475

A brief comparison of the conditions, imposed by the national
legislation of the member States of IRfCOfor the grant to ships of
the nght to fly its flag, shows that al1the States at present members
of the M.S.C. under the title of "largest ship-owning nations"
require ownership by nationals as a condition for registration,
whereas under the legislation of Panama and Liberia registration
is open to al1applicants irrespective of their nationality. In caseof
partnerships, associations and unincorporatcd companies, al1
members, or-in some countries-at least the majority of the
members should possess the nationality of the State of registration

according to the legislation of the first-mentioned group of States;
no such condition is required under the legislation of Panama
and Liberia.
As to ships owvnedby corporations there is more variety in the
legislation of the group of States elected as members of the M.S.C.
under the title of "largest ship-owvningnations" with regard to the
link between the corporation and the State concerned, imposed as
a condition for registration of a ship orvned by that corporation.
Incorporation under the laww,o sf the State concerned is not always
expressly required. However, if there is no such condition-and, in
some countries, even if there is-other conditions ensuring the

' Figures takefrom lMCO/A.IIWorkin gaper5 and Add. 1.13 January 1959.252 WRITTEN STATEMEST OF THE XETHERLASDS GO\'ERSMEST

national character of the corporation are estahlished, such as the
nationality of the menibers of the board of directors or the.seat of
the real centre of busiriess. Contrarywise, the legislationsof Panama
and Liberia do not contain either the requirement of incorporation
under the laws of thc State concerned or any condition as to the
nationality of the management.
In view of the above it is submitted that the Asscmbly in pro-

ceeding on 15th January, 1959, to the election of the M.S.C. as
presently constituted, acted in accordance with the IMCO Con-
vention and the gencral rules of international law by not giving
decisive weight-for the election of "thelargest ship-owningnations"
-to the amount of tonnage registered under the flags of Panama
and Liberia. The legislations of the States presently electcd uiider
the title of "largest ship-owning nations" al1 require certain con-
necting factors between ships flyiiig their flags and the state, which
connecting factors are ?lorequired under the legislations of Panama
and Liberia.

12. The observations of the Xetherlands Government, as
elaborated ahove, may be summarized as follows:
(a) Article 28 (a) of the IhICO Convention lays down as a condition
for eligibility as member of the M.S.C. that the State concerned
shall have an importaiit interest in maritime safety. As regards
eight of the fourteen members of the M.S.C. thc important
interest in maritime safcty shall be evidenced by the fact that

those members are the largest ship-owning nations.
(b) In applying Article 28 (a) the Assembly may takc into account
any factor which it is possible reasonably and in good faith to
connect with the conditions emhodied in that Article.
(c) The meaniiig of the term "ship-owning nation" in Article 28 (a)
must be determined in connection with the general rcqiiircment
of interest in maritime safety and the nature of thc task entrusted

to the N.5.C. Accordingly the term does not refer to the amount
of tonnage registered under the flag of a particular State.
(ci) In so far as the relative amount of tonnage registered in a State
may be relcvant for the designation of those eight States wliich,
bei~zgalreatly qr~alifiedas shiP-owzing nations, are the largest in
this respect, no account can be taken ofregistration which, under
the national legislatioii applicable thereto, does not corresl~oiid
to a genuine link bctween the ship and the State.

For these reasons it is siibmitted by the Netherlands Government
that the Assembly of IMCO, in proceeding on Janiiary 15, 1959, to
the election of the M.S.C. as presently constituted,did not overstep
the limits of the discretion left to it under Article 28 (a) of the
IMCO Convention.

The Hague, December 4, 1959. 13. WRITTEN STATEMENT OF THE GOVERNMENT
OF INDIA

Introductory

The first Assembly of the Inter-Governmental Maritime Con-
sultative Organization, by Resolution dated 19th January, 1959,
decided to submit to the International Court of Justice, with a
request for an advisory opinion, the following question:

"1s the Maritime Safety Committee of the Inter-Governmental
Maritime Consultative Organization, which was elected on 15th
January, 1959, constitiited in accordance with the Convention for
the estahlislimeiitof the Organization?!'
The Government of India considers that the questions submitted

to the International Court of Justice should be answered in the
light of the international practices and through the reasoned
application of the generally accepted priiiciples of international law,
forexample, the principle that each State is free "to fix conditions
forthegrant of its nationality to ships, for the registration of ships
in its territory, and for the right to fly its flag"e other applicable
principle is that vessels on the high seas are subject to no authority
except to that of the State whose flag they fly, for the entire inter-
national legal system which the States have evolved to maintain
law, order and safety on the high seas is predicatecl on the possession

by each vessel of a connection with a State having a recognized
maritime flag.
2. The reason ufnutionnlity

The basic reason for each country having its own national law
concerning shipping is to be found in the practice of registration
of ships. As Judge Sir Hersch Lauterpacht has observed in Oppen-
heim's International Law: "It is necessary for every State to
register the names of al1 private vessels sailing under its flag, and
it must make them hear their names so that every vessel may be

identified from a distance." 2The law of nations imposes the duty on
every State having a maritime flag to provide by its own municipal
laws the conditions to be fulfilled by those vessels which must need
sail under its flag. The registration of ships and the need to fly the
flag of the country where the ship is registered are considered
essential for the maintenance of order on the open sea, since it is
easy to enforce the rule that a vessel not sailing under the maritime
flag of a State enjoys no protection whatsoever. It is now a well-
establisheddoctrine of international law that "freedom of navigation

' Articlj of the Geneva Conventioon the High Seas1958.
Oppenheim. International Law. Vol. 1, 8th edition. by H. Lauterrgjj,,
P. 597-254 WRITTEN STATEXENT OF THE GO\'ERXhlENT OF INDIA

on the open sea is freedom for such vessels only as sail under the
flagof a StateM1.In Noim Molvan vs. Attorney-GeneralforPalestine a,
it has been clearly established that a vessel not sailing under the
flag of any State has no right to protection just as a vessel sailing
under the flags of two different States is depnved of any protection
whatever. These rules now stand enshrined in Article 6 of the
Geneva Convention on the High Seas (~ggS), which reads as follows:

"1. Ships sliall sail under the flag of one State only and, save in
exceptional cases expressly provided for in international
treaties or inthese articles, shall be subject to its exclusive
jurisdiction on the high seas. A ship may not change its flag
during a voyage or while ina port of call, save in the case of
a real transfer ofwnershigior change of registry.
2. A ship which sails under the flagsof two or more States, using
tliem according to convenience, may not claim any of the
nationalities in question with respect to any other State, and
may he assimilated to a ship mithout nationality."
ITlying the national flag is, therefore, essential, and each State,

whether it owns vessels or its nationals own them, finds it incum-
bent to prescribe rnles relating to who can fly its flag, i.e. formulate
the law relating to registration of ships, which duty, as stated
before, is imposed on it by the law of nations.
In the light of the above, it is clearly established that each State
is free to fix the conditions for granting itsnationlility and that the
flag State has exclusive jurisdiction over these ships on the high
seas.

3. The ZMCO Cotcuerction
Article 28 (a) of the IMCO Convention provides that "the
Maritime Safety Committee shall consist of fourteen members.

elected by the Assembly having an important interest in maritime
safety", of which:
(1) not less than eight shall he thlargestship-owningnations; and
(2) the remainder, i.e. sis meinbers, shall be elected so as to ensure
adequate re~resentation of members such as nations interested
in the supply of large numbers of crews orin thearriageof large
iiumbers of berthed and iinberthed passengers and of major
geographical areas.

It appears from the above that two tests were to be applied by
the Assembly in electing the eight and six members respectively
to the Maritime Safety Committee. In regard to the first category
of members, the only test to be applied is which are the eight
"largest ship-owning nations". It may be argued that as this
provision does not really give any discretion, in respect of election,

to the members of IRICO,the convention might have put down the
1Oppenheirn, Intr~nafionbu>. Vol.1, 8th edition. by H. Lauterpacht. r955.
P. 595.
'('948)A.C. 351. \+'RITTEX STATENENT OF THE GO\'ERNUENT OF ISDIA
255
names of eight members as well. As it has not done so, it may be
taken as an indication thatthe criterion depends on a variable factor;
one State may be the "largest ship-owning" nation today but it
may not continue to be one after a year or two. In view of the fact

that members are to be elected for a term of four years and shall
be eligible for re-election, the real intention of the framers of this
provision appears to be that the largest ship-owning nations at the
time of each election must be represented on the Safety Cominittee.

4. The staltdards ta be applied ta ascertain the "largest
ship-owning nations"
It is clear from the provisions of Article 28(a) that it does not lay

down the standards to be applied for identifying that largest
"ship-olvning nations". This has given rise to a conflict of views;
one view is that the criterion should be based on" Registered
Tonnage", the other is that of "ownership by nationals". Under the
former criterion, which in our view içthe correct one, that nation is
the largest ship-owning nation under whose flag the ships carry the
largest tonnage, although such tonnage may not be owned by its
own nationals.

5. International law and the law of the fEag

In this connection an important question arises: What is the
legal relationship betweeii a ship and a State whose flag it flies?
The proposition that every ship has a nationality implies the exis-
tence of a relationship between a vessel and a State of such distinc-
tive closeness and intimacy that the latter may regard the vessel
as belonging to itself rather than to any other country. "Thus the
term nationality". points out Prof. C. C. Hyde, "seemingly has
reference to a conclusion of law growing out of a set of facts ivhich

points to a special connection between vessel and State, and which
somewhat resembles the connection between an individual and a
State which serves to enable the latter to claim him as a national."
He continues: "It is probably a sound proposition that a vessel
registered under the laws of a State and possessed of a certificate
of registry may be deemed in an international sense to belong to
that State, and to justify it in giving it the privilege of flying its
flag, regardless of the nationality of the owners of the ship." l
Thus, two factors are clearly brought out from what has been

stated above: Firstly, every merchant ship has a nationality which
indicates that the ship belongs to that particular State. and
secondly, the nationality is evidenced by a certificate of registration
and the flag of a nation which it flies regardless of the nationality
of the owners of the ship. This view is also supported by Oppenheim
in his learned treatise on international law:

Vol.H1.2nded.(1947)opp. 809-810.s inlerfireted nfifiliby th8 United States.256 WRITTEN STATEAIENT OF THE GOVERKAlEST OF IKDIA

"Private vessels are considered as though they mere floating
portions of the flag State only in so far as they,remain whilst on
the open sea in principle under the exclusive junsdiction and pro-
tection of the flag state.Thus. the birth ofa child, a will orbusiness
contract made, or a crime committed on board ship, and the like,
are considered as happening on the territory, and therefore under
the territorial supremacy, of the flag State." '
The majority judgment in the "Lotus" Case gave explicit

recognition to the above principles. While agreeing with the French
Government's assertion of the existence of the principle that "the
State \\,hose flag is floxvnlias exclusive jurisdiction over everything
which occurs on board a merchant ship on the high seas", the Court
stated: "A corollary of the principle of the freedom of the seas is
that a ship on the high seas is nssimilated to the territory of the
State the flag of which it flies, for, just as in its own territory, that
State exercises its authority upon it, and no other State may do
so... J3y virtue of the principle of the freedom of the seas, a ship is
placed in the same position as national territory."

Similarly in Katrantsios vs. Uzilgaria (1927) t.e Greco-Bulgarian
lllixed Arbitral Tribunal held tliat the flag determines a vessel's
nationality, unless the documents on board or the ship's register are
to the opposite effect 3.
In this connection Oppenheim observes:
"In the iiiterest oforder on the open sea,a vesselnot sailingunder
the maritime flag of a State enjoys no protection whate\rer, for the
freedom of navigation on the open sea is freedom for such vessels
only as sail under the flag of a State. But a State is absolutely
independent in framing the rules concerningthe claim of vessels to
its flag.It can, in particz~lar,authorize such vessels to sail under ils
Jlagas are the property of foreign sttbjects; but such fovezgnvcssels
sailing undevils flagfull thevebynnder ils jurisdiction."

Admittedly the right of a State to grant its nationdity carries
with it the corresponding duty to exercise control and effective
jurisdiction over those vessels flying its flag in the interests of order
on the high seas. In exercising jurisdiction over its ships, the flag
State is in a position, through its national laws and regulations, to

enforce the rules of safety on sea, no other State either legally or
de lacta is in a position to enforce the rules of safety on sea.
It cannot be denied tbat as far as taxes are concerned, as well as
employment conditions relating to crew and, above all, standards
of maritime safety, it will be the law of the flag, irrespective of the
ownership of the vessel, which would govern the position. Thus, if

' Op. .heim's Intar~$afio~zolLaw. Edited by Prof. LauterpachVol. 1 (1955).
P. 597.
The case of the S.S. "Lofas"; P.C.I.J. Ser. A.IO,p. 25.
8 7 M.A.T. (1928).p. 42.
Oppenheini, Inler>ialionol Law. Edited by Sir H. Lauterpacht(Vol.1, 8th WRITïEh' STATEMENT OF THE GOVERNMENT OF INDIA 257
Article 28 (b) of the I.AI.C.0. Convention restricts membership of
the Maritime Safety Committee to "nations having an important

interest in maritime safety", it would certainly be the law of the
flag that will govern the application of rules and regulations relating
to maritime safety, and the test of nationality of the owner of the
vessel will not be able to determine the proper law in this respect.
In this connection, Article 3 of the Load Line Convention of 1930'
may be cited:

"A ship is regarded as belongingto the country,ifit is registered
by the Govemment of that country.''

Moreover, theapproachof the Member States parties to the Inter-
national Convention for the Prevention of Pollution of the Sea by
Oil,1954 2. leaves no room for doubt that the law of the flag would
determine the applicability of an international convention to a
particular tonnage irrespective of ownership. The International
Conference on Oil Pollution of the Sea held in Copenhagen in July
1959 apprcciated the fact that the flags of convenience (Panama,
Honduras and Liberia) along with the United States accounted for
a large proportion of tanker tonnage which was outside the Con-
vention " It is common knowledge that a majority of the owners of
tonnage coming under the category of "flag of convenience" reside
outside Panama, Liberia and Honduras, and some of them are
nationals of States that have ratified the Convention. Yet the

Convention would not apply to this tonnage unless Panama, Liberia
and Honduras ratify the same. This is indeed significant.
There are other considerations which make it incumbent that the
real test in this regard is the law of the flag. Firstly, it is the law of
the flag unconnected with the ownership of the vessel which
provides the necessary authority to the mater of a ship to deal with
the cargo during the voyage and the manner in which he should
execute it. In the case of TheAugust ',it was held that the mater's
authority to make the sale of cargo when driven into a port of
distress was not govemed by the law of England though the ship
had taken on board cargo shipped by British subjects under English
bills of lading. It was the law of Germany, i.e. the law of the flag,
which applied. Secondly, the validity, interpretation and effect of
a contract of affreightment, maritime insurance and property rights
are governed by the law of the flag. On the other hand. the question

may be raised as to which State will have the pourer to enforce rules
of safety on the high seas, if the flag State is declared not to possess
such a power. The answer will have to be that no other State has
the pourer to do so.258 WRITTEX STATEhlENT OF THE GOVERNMENT OF INDIA
6. The term "ship-owning" nations-a misnomer

The use of the term "owning" is a misnomer and cannot be
taken in its literal sense. Except in cases of States which have
nationalized this industry, States do not own merchant ships. They
exercise jurisdiction over them. If it is taken in its literal sense, the
largest mercantile nations of the world, like the United States, may
not have the first position. However, it has never been doubted
that the United States is the largest ship-ouning nation in the
world. Therefore, the term has been used to convey the idea of

jurisdiction and authonty over the ship and not that of ownership
of the ship in its literal sense. To ascertain the nationality of the
ship, one has to look to the flag and the registry of the ship.
7. Ownership by nationals as a criterion

The present reference to the International Court of Justice arises
out of claims by Liberia and Panamafor membership of the Maritime
Safety Committee. An argument against their claims has been
advanced that although Liberia and Panama are among the eight
largest ship-owning nations according to the quantity of gross
tonnage registered in the name of those States, this criterion may
be ignored- because such tonnage \iras not owned by Panamanian
and Liberian nationals.

8. The objectbehind this provision
It may be noted that the functions of the Maritime Safety
Committee have been described in Article 29 (a), ~vhichprovides:

"The MaritimeSafety Committee shaii have the duty of consider-
ing any matter within the scope ofthe Organizationand concerned
with aids to navigation, construction and equipment of vessels,
sions, handling ofcargoes, maritime safety proceùures and requi-li-
rements, hydrographic information, log books and navigational
records, marinecasualty investigation, salvage and rescue and any
other matters directly affecting maritime safety."

Thus, the Committee will be concerned with formulating con-
ventions laying down rules for safety at sea. It is to be mentioned
that the Inter-Governmental Maritime Consultative Organizztion
is an advisory and consultative body and the conventions prepared
by it are not binding on the parties automatically. The member
States have to ratify each of these conventions in accordance with
their respective constitutional procedures. The vessels registered
in Panama and Liberia and flying the gags of those States may be
owned by citizens of the United States, Greece, United Kingdom
or any other country in the world, but, as far as the standards of
maritime safety are concerned, it will be the law of the flag State,

irrespective of the ownership of the vesse1or the ownership of the
cargo, which would govern the position. The intention for the
inclusion of Article28 (a) seems to be to restrict rnembership of the WRITTEN STATEMENT OF THE GOVERNhlENT OF INDIA 259

Maritime Safety Committee to nations having the power to enforce
rules and regulations for maritime safety; this certainly coiild be
done only under the law of the flag State and under no other. In
this regard the test of nationality of the owner of the vesse1will
not be able to determine and enforce the proper law in this respect.
In short, the gross registered tonnage indicated by the Lloyd's
Register of Shipping would, from the point of view of maritime
safety, record the correct position of the importance of Panama
and Liberia. If a convention on maritime safety recommended by
the Inter-Governmental Maritime Consultative Organization is not

adopted by Panama and Liberia, because they have had no oppor-
tunity to discuss it during the formative stage in the Safety Com-
mittee, it would mean so much valuahle tonnage excluded from the
operation of important international conventions.
In addition, either from a practical point of view or from the
point of view of existing practice, the criterion should be one of
tonnage and the law of the flag; the commercial practice is by
registration of tonnage, which determines the flag. For instance,
the Lloyd's Register of Shipping-with reference to and following
which the election took place on 15th January, 1959, except in the
case of Liberia and Panama-was computed on the basis of

registered gross tonnage only of the flag State, irrespective of
ownership. The Govemment of India considers that the test of
ownership, which could change at will of shareholders at a moment's
notice, is totally unsnited with reference to the question of formu-
lation and enforcement of maritime safety rules.
In conclusion, the Government of India considers that the
economic success of ship-owning and ship operating business
depends upon a reasonably reliable forecast of the laws and
regulations which willapply tothe ship.The law as tothe nationality
of the ship must be definitely known in advance. It cannot be left
to the general decision of a judge or a tax officeror a crew welfare
administrator while the voyage is going on or after the voyage is

concluded. The proposition that authorities may look behind the
law of the flag to try to discover facts about national control of
sums of money invested in the ships leads to the splitting of the
nationality of the ship, which is destructive of the economic, social
and legal conduct of the shipping business. It will result in inter-
national legal anarchy and in the disruption of the legal order
which has already been established and followed. In view of the
above, the Government of India considers that the election which
took place on 15th January 1959 to elect the members of the IMCO
Maritime Safety Committee was not in accordance with the
Convention for the establishment of the Organization and that
Liberia and Panama should have heen elected as two of the eight

members in accordance with paragraph I of Article 28 (a) of the
IXCO Convention.