Procès-verbaux des audiences publiques tenues au Palais de la Paix, La Haye du 26 avril au 4 mai et le 8 juin 1960, sous la présidence de M. Klaestad, président

PART II

ORAL STATEMENTS

PUBLIC HEARINGS
heldat thePeacePalace, The Hague,

frofn2il$ri/O4 May and o8 Jztn1960,
thePresideMY. Klaestad, firesiding

DEUXIÈME PARTIE

EXPOSÉS ORAUX

AUDIENCES PUBLIQUES

tenuesazlPalais de la Paix, La Haye,
du 26 avril4mai et 8ejuin 1960,
sortsIn$résidencede M. Klaeslari,I'résident MINUTES OF THE HEARINGS HELD
FROM 26APRIL TO 4 MAY AND ON 8 JUNE 1960

SECOND PUBLIC HEARING (26 IV60. 10.30 u.m.)

Present: Preside~it KLAE~TAD; Vice-President ZAFRULLAKHAN;
Judges BASDEVANT H,ACKWORTH ~, INIARSKBI,ADAIVIA, RMAND-UGON,
KO~EVXIKOV Si,r Hersch LAUTERPACH~ TI,ORENOQUINTANA ,~RDOVA,
~ELLINCTON KOO,SPIROPOULOs Si,r Percy SPEXDER, LFAROD ; epzity-
Registrar GARNIER-COIGNET.

TheStatesparkcipating in theorpvoceedingswererepresenteasfollow:
Ilaly: Professor Riccardo MONACO P,rofessor of the Uni-
versity of Itome, Chief of the Department of
Contentious 3latters of the Alinistry for Foreign
Affairs.
Liberia: The Honourable Rocheforte L. WEEKS, former
Assistant Attorney-General of Liberia, now Pre-
sident of the University of Liberia;
The Honourable Edward R. MOORE,Assistant
Attorney-General of'Liberia;
Netherlands: Illr. W. RIPHAGENP ,rofessor of International Law
at Rotterdam, Legal Adviser of the Ministry for
Foreign Affairs.

Norway : Mr. Finn SEYERSTEDD , irector of Legal Affairs in
the Norwegian lflinistry for Foreign Affairs.
Panama : Dr. Octavio F~BREGA,President of the National
Council of Foreign Affairs, in the capacity of
Ambassador Extraordinary and Plenipotentiary
on Special hlission.
United Kingdom of MT. F. A. VALLATD , eputy Legal Adviser to the
GreatBritain and Foreign Office, assisted by
NorthernIreland: filr. DJ ~ ~ ~ ~ ~ ~ ,
Mr. Eric H. HAGEII.Legal Adviser of the Depart-
of America:es ment of State, assisted by

Mrs. N. M.FLEMINGA , ssistant to the Legal Adviser
of the Department of State.

The PRESIDENT opened the hearing and announced that the Court
included upon the Bench Dr. Ricardo J. Alfaro of Panama, who was
elected, at the last session of the General Assembly, by the Assembly
and the Security Council. fiite vacaiicy existing in the membershipPROCÈS-VERBAUX DES AUDIENCES TENUES

DU 26 AVRIL AU 4 MAI ET LE 8 JUIN 1960

DEUXIÈME AUDIENCE PUBLIQUE (26 IV60,IO A. 30)

Présents:hl.KLAESTAD Président;II.ZAFRULLA KHAN, Vice-Président;
hfM. BASDEVANTH , ACKWORTH ~,T 1 ~ ~ ~ BA,DAWI,ARMAND-UGON,
KOJEVNIKOV,Sir Hersch LAUTERPACHT M,M. MORENOQUINTANA,
CORDOVA,WELLINGTONKOO, SPII<OPOULOSS ,ir Percy SPENDER,
hl. ALFARO, Juges; M. GARNIER-COIGNE T,efier adjoint.

Les États prenant parà la procédure orasont représentésommesuit:

Itali: hl. Riccardo R~ONACO professeur à l'université de
Rome, chef du contentieux diplomatique du mi-
nistère des Affaires étrangères.

Libéria: L'honorable Rochcforte L. ~VEEKSa ,ncienAttonaey-
Generaladjoint du Libéria, actuellement président
de l'université du Libéria;
L'honorable Edward R. MOORE, Attorney-General
adjoint du Libéria.

Pays-Bas: hl.W. RIPHAGEN,professeur de droit international
à Rotterdam, jurisconsulte du ministère des Af-
faires étrangères.
Norvège : M. Finn SEYERSTED di,recteur des Affaires juridiques
au ministère norvégien des Affaires étrangères.
Panama : Le D' Octavio F~BREGAp ,résident du Conseil natio-
nal des relations extérieures, en qualité d'ambas-
sadeurextraordinaireet plénipotentiaire en mission
spéciale.

Royaume-Uni de hf. F. A. VALLAT,conseiller juridique adjoint du
Crande-Bretagneet Foreign O@ce,assisth de
d'IrlandeduNord: M, D, jOHNSON,
Etats-Unis M. EricH. HAGER,conseilier juridique dDepartment
d'Amérique : of State, assistéde

Mme M. M. FLEMINGa ,djointe au conseiller juridique
du DepartmentofState.

Le PR~SIDENT ouvre l'audience et annonce aue la Cour com~rend
nii~ourd'hui sur le siégc11 I<icaJ.l:\lfnro. du'l>aii;inia. qui a cicélu
à la dernihre sessidcl':\ssrriiblér.gc'ii6ralcyar I':\ssetle ConwiI
de Sécuritéau poste vacant de la cour. M.-Alfaro est prêh entrer en263 HEARINC OF 26 APRIL 1960

of the Court. Dr. Alfaro was ready to take up his duties, but before
doing so he was required to make the solemn declaration provided for in
Artide zo of the Statiite of the Court.
The President called upon Dr. Alfaro to make that declaration.
(TheCourt stood up.)
Judge ALPARO made the solemn declaration provided for in Article zo
of the Statute.
(The Court sat down.)
The PRESIDENTplaced on record the declaration made by Judge
Alfaro and declared him duly installed as a Judge of this Court.
The President then announced that the Court was Sitting today ta
hear oral statements in connection with a request for an Advisory
Opinion submitted to it by the Assembly of the Inter-Governmental
Maritime Consultative Organization. That request, made pursuant to a
Resolution of the Assembly of 19 January 1959, sought the opinion of
the Court on the following question:

"1s the Maritime Safety Committee of the Inter-Governmental
Maritime Consultative Organization, which was elected on 15
January 1959, constituted in accordarice with the Convention for
the Establishment of the Organization?"
Notice of the request had been given to al1States entitled to appear
before the Court, and the Court had received from the Secretary-General
of the Organization the documents likely to throw light upou the
question.
By an Order dated 5 August 1959 a time-limit was fixed for the sub-
mission of written statements by States considered as likely to be able
to furnish information on the question, namely the States which are
members of the Organization. Statements had been received from the
Govemments of France, Liberia, the United States of America, the
Republic of China, Panama. Switzerland, Italy, Denmark, the United
Kingdom of Great Britain and Northern Ireland, Norway, the Nether-
lands and India.
The desire to be heard in the present proceedings had been expressed
bythe Governments of Italy, Liberia, the Netherlauds, Norway, Panama,
the United Kingdom and the United States of America. The President
said he would first cal1upon the Representative of Liberia, and there-
after on the other Representatives in the following order: Panama, the
United States of America, Italy, the Netherlands, Norway, and the
United Kingdorn.

The President called upon the Representative of Liberia.
Mr. WEEKSbegan the speech reproduced in the annex '.
At the request of Mr. Weeks, the PRESIDENT called upon Mr. Moore.
Mr. MOORE began the speech reproduced in the annex P.

(The Court adjourned from I p.m. till 4 p.m.)
Mr. MOORE concluded the speech reproduced in the annexs.

Seepp. 269.279.
,, ,, 280-282.
,. ., 282-292.fonctions, mais il doit au préalable prendre l'engagement solennel prévu
à l'article20 du Statut de la Cour.

Le Président prie M. Alfaro de prononcer cette déclaration.
(La Cour se lève.)
M. ALFARO prononce la déclaration prévue àl'article20 du Statut
(La Cour se rassied.)

Le PRESIDENT prend acte de la déclaration prononcéepar M. Alfaro
et le déclareinstalléen ses fonctions de juge.
Le Président expose que la Cour est réunieaujourd'hui pour entendre
les exposésoraux relatifs à la demande d'avis consultatif qui lui a été
présentéepar l'Assemblée del'organisation intergouvernementale con-
sultative de la Navigation maritime. Cette demande, présentéeen exé-
cution de la résolution de l'Assembléedu 19 janvier 1959, sollicite l'avis
de la Cour sur la question suivante:

a Le Comité de la Sécuritémaritime de l'organisation inter-
janvier 1959 a-t-il étéétabliconformémenttiànla convention portant
création de l'organisation?I)

La demande d'avis consultatif a éténotifiée à tous les États admis à
ester en justice devant la Cour et la Cour a reçu du Secrétaire général
de l'organisation les dociiments pouvant servir à élucider la questiori.

Par ordonnance du 5. aoîit 1959, un délai a étéfixépour le dépôt
d'exposés écritspar les Etats jugéssusceptibles de fournir des renseigne-
ments sur la question, à savoir les États membres de l'organisation.
Des exposésont étéreçus des Gouvernements de la France, du Libéria,
des États-Unis d'Amérique,de la République de Chine, du Panama, de
la Suisse,del'Italie, du Danemark. du Royaume-Uni de Grande-Bretagne
et d'Irlande du Nord, de la Norvège,des Pays-Bas et de l'Inde.

LesGouvernements del'Italie, du Libéria, desPays-Bas, dela Norvège,
di1Panama, du Royaume-Uni et desÉtats-Unis d'Amériqueont exprimé
le désird'êtreentendus en la présente procédure. Le President annonce
qu'il donnera la parole en premier lieu au représentant du Libéria et
ensuite aux autres représentants dans l'ordre suivant: Panama, États-
Unis d'Amérique, Italie, Pays-Bas, Norvège et Royaume-Uni.

Le Président donne la parole au représentant du Libéria.
M. WEEKScommence l'exposéreproduit en annexe '.

A la demande de M.Weeks, le PRÉSIDENT donne la paroleà M. hloore.
hl. MOORE commence l'exposéreproduit en annexe '.
(L'audience, suspendue à 13 h., est reprisà 16 h.)
M. MOORE termine l'exposéreproduit en annexe 3. HEARIXGS OF 27 ASD 28 APRIL 1960
264
The PRESIDENTcalled upon 3fr. \\'eeks.

hlr. WEEKScontinued the statenient of the case for Liberia'.
(The Court rose at 6 p.m.)

(Signed) Helge KLAESTAD,
President.

(Signe4 GARNIER-COIGNET,
Deputy-Registrar.

THlRD PUBLIC HEAIZING (27 IVGo, 10.30a.ni.)

Present: [As listed for hearing of 2IV 60.1

The PI<ESIUENT opened the hearing and called upon 3fr. \Veeks.
AIr.\\'EEKSconcluded the statement of the case for Liberi'.
The Pl<esiue~~ called upon the Itepresentative of the Government
of Panania.
Dr. FABREGA hegan the speech reproduced in the annex'.

(The hearirig was adjourned from 1.05 p.in. to 4.0 p.m.)
Dr. ~~ABREC concluded the speech reproduced in the anricx A.
(The Court rose at 5.56 p.m.)
[Signulures.]

FOURTH PUBLIC HEAKIXG (28 IVGo, 10.30 a.m.)

Present:[As listed for hearing o26 IV Go.]
The PRESII)ENT opei~edthe heariiig and calledupon the Kcpreseiitative
of the United States of America.
Mr. HAGERmade the speech reproduced in the anncx6.

The PRESIDENT called upon the Kepresentative of Italy.
M. hlox~co began the speech reproduced in the aiiiiex'.
(The hearing was adjoiirned from 1.05 p.m. to 4 p.in.)

M. Alox~co continued the speech reproduced in the annex '.
(The Court rose at j.j6 p.m.)
[Sigiiatures.] ..ILIDIENCES DES 27 ET 28 AVRIL 1960
264
Le PRESIDENT donne la parole à M. II'eeks.
If. WEEKScontinue l'exposéau nom du Libéria '.

(L'audience est levée à 16 h.)

Le Présiderit,
(Signé) Helge KLAESTAD.

Le Greffieradjoint,
(Signé) CARNIEII-COIGSET.

TROISII>~\IE AUDIENCE PUBLIQUE (27 IV 60, IO h. 30)

Présents:[Voir audience du 26 IV 60.3
Le PRESIDENT ouvre l'audience et donne la parole à hl.IVeeks.
M. IVEEKStermine l'exposéau nom du Libéria

Le PRESIDENT donne la parole au représentant du Panama.

Jf.F~BREGA commence l'exposéreproduit en annexe *.
(L'audience, siispendiicà 13 h. oj, est repriseà 16 B.)
If. FABREGA termine l'exposéreproduit en annexe4.

(L'audience est levée à 17 h.56.)
[Signatrrres.]

QUATI<IÈAlE AUDIENCE PUBLIQUE (28 IV 60, IO h. 30)

Présents:[Voir aildience du 26 IV 60.1

Le PRÉSIDENT ouvre I'al~dienceet donne la parole au représentant des
États-Unis d'Amériqiie.
N. HACERprononce le discours reproduit en annexe
Le PRÉSIDESTdoline la parole au représentant de l'Italie.
31.Blos~co commence l'exposéreproduit en annexea.

(L'audience, suspendue à 13 h. 05, est reprise i 16h.)
If. AIos~co continue l'exposéreproduit en annexe '.
(L'audience est levéeà 17 h. 56.)
[Signatures.]

' Voir 8p.295-301..
X * 302-308!
' 8 r 309-319.
n * 320-330.
" 331.337.
' r i 337-348265 HEARIXGS OF 29 APRIL AND 2 MAY 1960

FIFTH PUBLIC HEARIXG (29 IV60,10.30 a.m.)

Preseitt: [As listed for hearing ofIV660.1
The PRESIDENT opened the hearing and called upon the Representative
of Italy.
M.MONACO made the speech reproduced in the annex '.

The PRESIDENT called upon the Representative of the Netherlands.
hfr. RIPHAGEN made the speech reproduced in the mnex '.
The PRESIDENTcalled upon the Representative of Norway.
hfr. SEYERSTED began the speech reproduced iii the annex

(The hearing was adjourned from 12.57 p.m. to 4p.m.)
hfr. SEYERSTED conduded the speech reproduced in the annex &.
The PRESIDENT called upon the representative of the United Kingdom
of Great Britain and Northem Ireland.
Mr. VALLAT began the speech reproduced in the annex'.

(The Court rose at 5.57 p.m.) [Signatures.]

SIXTH PUBLIC HEARING (2 v 60. 10.30 a.m.)

Present: [As listed for hearing of 26 IV 60, with the exception of
Judge Sir Hersch LAUTERPACHT.~
-.
The PRESIDENo Tpened the heanng and called upon the Representative
of the United Kingdom of Great Britain and Northern Ireland.
Mr. VALLAT continued the speech reproduced in the annexe.
(The hearing was adjourned from 12.56 p.m. to 4 p.m.)
Mr. VALLAT concluded the speech reproduced in the annex'.

The PRESIDENT stated that Judge Cordova wished to put a question
to the Kepresentatives.
Judge C~RDOVA read the question reproduced in the anne'.
The PRESIDENT announced that. the Government of Liberia having
expressed the wish to comment on Iiew poiiits made in the course of
previous Oral Statements, it had been decided. as an exception and
because of the special character of the case, to allow Representatives to
address the Court a second time, provided that the second speech was
limited to new points made during the hearings and without any re-
petition of what had already been said. Representatives could reply to
Judge Cordova's question in the course of those speeches. AUDIENCES DES 29 AVRIL ET 2 MAI 1960 265

CINQUIÈME AUDIENCE PUBLIQUE (29 IV 60,IO h. 30)

Présents: [Voir audience du 26 IV 60.1
Le PRÉSIDENT ouvre l'audience et donne la parole au représentant de
l'Italie.
M. MONACO prononce le discours reproduit en annexe l.

Le PRÉSIDENT donne la parole au représentant des Pays-Bas.
M. RIPHAGEN prononce le discours reproduit en annexe P.

Le PRESIDENT donne la parole au représentant de la Norvége.
M. SEYERSTED commence l'exposéreproduit en annexe
(L'audience, suspendue à 12h. 57, est repriseà 16h.)

M. SEYERSTED termine l'exposéreproduit en annexe
Le PRESIDENT donne la parole au représentant du Royaume-Uni de
Grande-Bretagne et d'Irlande du Nord.
M. VALLAT commence l'exposéreproduit en annexe6.

(L'audience est levéeà 17h. 57.)
[Signatures.]

SIXIÈME AUDIENCE PUBLIQUE (zv 60, IO h. 30)

Présents: [Voir audience du 26 IV 60, à i'exception de sir Hersch
LAUTERPACHjT u,ge.]

Le PRESIDENT ouvre l'audience et donne la parole au représentant du
Royaume-Uni de Grande-Bretagne et d'Irlande du Nord.
M.VALLAT continue l'exposéreproduit en annexee.
(L'audience, suspendue à 12 h. j6, est repriseà 16 h.)

M. VALLAT termine l'exposéreproduit en annexe '.
Le PRÉSIDENT annonce que M. Cbrdova désire poserune question aux
représentants et lui donne la parole.
M. CORDOVA donne lecture de la question reproduite en annexeB.

Le PRESIDEKT annonce que, le Gouvernement du Libériaayant exprimé
le désirde présenter des commentaires sur les nouveaux points soulevés
au cours des exposésoraux, il a étédécidé, à titre exceptionnel et en
raison du caractére particulier de l'affaire, de permettre aux représen-
tants de prendre la parole une seconde fois, pourvu que les deuxièmes
exposés soientlimitésaux nouveaux points soulevésau cours des débats
oraux et ne reprennent pas les questions déjàtraitées. Les représentants
pourront répondre à la question poséepar hl.Cbrdova au cours de ces
exposés.

1 Voirpp. 348-350.
0 * 351-359.
a O x 360-364.
\ * 364-3652,
\ ri>370-376.
* x 376-389.
' a 389-394.
* P. 394. The President added that the nest hearing r\.ouldbe held the following
day at 10.30 a.m. to hear the Representative of Liberia in his second
statement.
(The Court rose at 5.17 p.m.)
[Signatures.]

SEVENTH PUBLIC HEARING (3 v 60, 10.30 ~.m.)

Presenl: [As listed for hearing of 26 ir 60, with the exceptioii of
Judges HACK\SORTa Hnd Sir Hersch LAUTERPACHT.]
The PRESIDEX+ opened the hearing and called upoii the Representative
of Liberia.

llr. WEEKSbegan the speech reproduced in the annex '.
(The hearing was adjourned from 12.jG p.m. to 4 p.m.)
hlr. WEEKSconcluded the speech reproduced in thc annexa.
The PRESIDI~XcT ailed upon the Representative of Panama.

Dr. FAIJREGA began the speech reproduced in the aiinex 3.
(The Court rose at 5,j8 p.m.)
[Signatures.]

EIGHTH PUBLIC HEARIXG (4 v Go. 10.30 ~.m.)

Present: [As listed for hearing of 26 IV Go, with the exceptioii of
clusion, for the i\'etherla>tds,of Aïr.H. SCIIEFFIL,cgal Adviser to the
Ministry of Transport and "Waterstaat", as Ex9ert Adviser.]

The PRESIDENT opened the hearing and called upoii Sir Percy Spender.
Sir Percy SPENDER put two questions, reproduced in the annex*, to
the Representatives of States appearing before the Court.
The PRESIDENT stated that Representatives could give their answers
in due course and called upon the Representative of Panama.
Dr. F,~BREGA concluded the speech reprodiiced in the annex5.
Thc P~es1i)rr~Tcalled upon the Representatives of thc United States
of America, of the Netherlaiids and of the United Kingdom to make
their statements in reply.

31r. HAGER,hIr. RIPHAGEPI and hfr. VALI.ATmade the speeches
reproduced in the annex'.
(The heariiig\vasadjourned from 12.j6 p.m. to 4 p.m.) Le Président ajoute que la prochaine audience se tiendra le lendemain
à IO heures 30 pour entendre le représentant du LrbCria en son deuxième
exposé.

(L'audience est levéeà 17 h. 17.)
[Signictures.]

SEPTIEME AUDIEXCE PUBLIQUE (3 v 60, IO h. 30)

Présents: [Voir audience du 26 IV 60, à l'exception de M.HACKWORTH
et de sir Hersch LAUTERPACHjT u,ges.]

Le PRÉSIDENT ouvre l'audience et donne la parole au représentant du
Libéria pour son deuxième exposé.
iif. WEEKScommence l'exposé reproduit en annexe '.

(L'audience, suspendue à 12 h.56, est reprise 16 h.)
M. WEEKStermine l'exposéreproduit en annexe P.
Le PRESIDENTdonne la parole au représentant du Panama.

M. FABKEGA commence le discours reproduit en annexe '.
(L'audience est levéeà 17 h. 58.)
[Signatz~res.]

HUITIEME AUDIENCE PUBLIQUE (4 v 60,IO h. 30)

Présents: [Voir audience du 26 IV 60, à l'exception deM. HACKWORTH
et de sir Hcrsch LAUTERPACHT j,ges, et avec l'adjonction, $ou7 les
Pays-Bas, de M. H. SCHEFFER,conseiller juridique du ministère des
Transports et du x Watcrstaat »,comme conseillerexpert.]
Le PRÉSIDEPIT ouvre l'audience et donne la parole à sir Percy Spender.

Sir Percy SPENDERpose aux représentants des États devant la Cour
les deux questions reproduites en annexe '.
Le PRESIDENT donne la parole au représentant du Panama.

M. FABREGA termine l'exposéreproduit en annexe
Le PRESIDEXTdonne la parole aux représeritarits des États-Unis
d'Amérique, des Pays-Bas et di1 Royaume-Uni pour leurs seconds
exposés.
Mhl. HAGER,RIPHAGEX et VALI.AT prononcent les exposés reproduits
en annexe O.

(L'audience, suspendue à 12 h. j6, est reprise à 16 h.)

1 Voirpp. 395-407.
a 8 8 407-408.
' * 409-419
' * * 419.420
X 8 420-424.
-1 x 425-4'9.430 et 431-433 267 HEARISG OF 8 JUXE 1960

The PRESI~ENTcalled upon the Representatives who had not yet
done so to reply to the questions put byM. C6rdova and Sir Percy
Spender.
Rlr. WEEKS,Dr. FABREGAM , r. HAGERand 311.RIPHAGEN made the
statements reproduceù in the annex.
The PKESIDENT declared the hearings closed.
(The Court rose at 4.51 p.m.)
[Signatures.]

NINTH PUBLIC HEARING (8 VI60, II fl.m.)

Present: President KLAESTAD;Vice-President ZAFRULLAKHAN;
jrrdges BASDEVAXT H,ACKWORTH W ,ISIARSKI,BADAWIA , RMAKD-UGOS,
KOJEVNIKOV,RIOENO QUINTANA,C~RDOVA, \VELLINGTON KOO,
SPIROPOULOS Si,r Percy SPENDERA, LFARO;Deputy-Kegislrar GARNIER-
COIGNET.

The PRESIDENo Tpened the hearingand statedthat since the Court last
sat it had suffered the grievous loss of one of its Members, Sir Hersch
Lauterpacht, who died in London, alter an operation, on 8 May 1960,

Sir Hersch Lauterpacht had been a Judge of this Court since 1955.
At the time of his election he had won for himsclf a commanding repu-
and as the author of many learned works.e academic field,ansadviser,
Born in 1897, he first studied law at Vicnna and later in London and
Cambridge. securing doctorates from these three Universities. After
being an Assistant Lecturer at the London School of Economics and
Reader in Public International Law in the University of London, he was
in 1937 appointed Professor of International Law in the University of
Cambridge. Before this date he was well known at the Hague, having
given the first of a numher of courses at the Hague Academy of Inter-
national Law as long ago as 1930, He was callcd to the Bar of England
in 1936 and became a King's Counsel in 19qg.
His zeal in the cause of the codification and development of inter-
national law found an outlet in the years of his membership of the
International Law Commission, in the work of which he played an
important part, in the years between 1951 and 1955.
Recognized as one of the greatest authorities on international legal
questions. his opinions, as expressed in numerous learned works, were
constantly cited whereversuch topics were argued, and, apart from his
original writings, he had in his compilation and editing of journals and
of reports of cases, made a contribution of great value to the literature
of international law and to its works of reference. In particular, he had,
since 1935, been responsihle for the new editions of a great classic.
Oppenheim's I?iternationnlLaw.

In the years, so abruptly and tragically crit short, in which he had
been on the Bench, Members of the Court had had an opportunity of
'Seepl>.434-436. 437, 438 and 439-440. AUDIENCE DU 8 JUIS 1960 267

Le PRÉSIDEPIT invite les représentants qui ne l'ont pas encore fait à
répondre aux questions poséespar hf.Cordova et par sir Percy Spender.

RIM. \\'BERS,FLBREGA, HAGEK et RIPHAGES font les déclarations
reproduites en annexe'.

Le PRÉSIDENT prononce la clôture des audiences.
(L'audience est levée à16 h. 51.)
[Signatures.]266 HE.4KISG OF 6 JUKE 1960

adding to their respect for his learning an appreciation of and admiration
for his tireless and whole-hearted devotion to the ideal ofthe settlement
of intemational disputes by judicial processes and his unremitting
labour in the cause of the development of international law, his contri-
bution to which would long survive him.
Sir Hersch Lauterpacht aould be remembered, not only for his leam-
ing, but as a man who combined with great scholarship great qualities
of warm humanity, gentleness, kindness and consideration.
The President asked the Court and al1 present to stand for a brief
moment in tribute to the memory of Sir Hersch Lauterpacht.

The President announced that the Court was Sitting to deliver the
Advisory Opinion requested by the Assembly ofthe Inter-Govemmental
Maritime Consultative Organization in the rnatter of the constitution
of the Maritime Safety Committee of the Inter-Govemmental Maritime
Consultative Organization. He asked the Vice-President to be good
enough to read the English text of the Opinion 1.

The VICE-PRESIDEKT read the Opinion.
The PRESIDENT asked the Deputy-Registrar to read the operative part
of the Opinion in French.

The DEPUTY-REGISTRrA eRd the operative part in French.
The PRESIDENTstated that he and Judge Moreno Quintana had
appended to the Opinion statements of their dissenting opinions'.
The President declared that the heariiig was closed.

(The Court rose at 12.05 pm.)

*SeeI.C.J. Report1960. pp. 150-172.
Zbid.. pp. 173-1177-178. AUDIENCE DU 6 JUIN 1960 268

ses collègues ont eu l'occasion d'ajouter à leur respect pour sa science
leur admiration et leur appréciation de son dévouementinlassable et total
à l'idéaldu règlement judiciaire des diffkrends internationaux et de ses
efforts constants et ininterrompus en vue du développement du droit
international. Sa participation à cette Œuvre lui survivra longtemps.

Sir Hersch Lauter~acht demeura dans les mémoires . . seulement
pour i:i,cic.nc<.mais coninir iiiI~i~niriieiii assuri:ii:i iinv Iinutc c'riidi-
tion dc gran(lvs i~ii;ilitIiiiiiiniisdc doiic+iir.de Iiuiit;vt (lcpr<\,t:nnnrr.
1.c I'r;.sidcnt invite13 c'oiirt-tI'a~iditoire.?sc lr\.tr c.1h 5e rcciicillir
quelques instants en hommage à la mémoirede sir Hersch Lauterpacht.
Le Président annonce que la Cour se réunit pour rendre l'avis consul-
tatif qui lui a étédemandé par l'Assembléede l'organisation intergou-
vernementale consultative de la Navigation maritime en l'affaire de la

composition du Comité dela Sécurité maritimede l'organisation inter-
gouvernementale consultative de la Xavigation maritime.
Le Président prie le Vice-Président de bien vouloir donner lecture du
texte anglais de l'avis '.
Le VICE-PRESIDENd Tonne lecture de I'avis.
Le PRÉSIDENT invite le Greffier adjoint à donner lecture du dispositif
de l'avis en langue française.

Le GREFFIER ADJOINT lit le dispositif en français.
Le PRÉSIDENT annonce que le Président et M.Moreno Quintana, juge,
ont joint à l'avis les exposésde leur opinion dissidente '.

Le Président lève l'audience.
(L'audience est levée à rz h. 05,)

Voir C.1. J.Recueil1960. pp. 150-172
Ibid..pp. 173-170, 177-178. ANNEX TO THE MINUTES
ANNEXE AUX PROCÈS-VERBAUX

1. ORAL STATEMENT OF &Ir. \VEEKS

(REPRESESTING THE GOVERNMENT OF LIBERIA)
AT THE PUBLIC HEARIXG OF 26 APRIL 1960, JIOR'iISG

Mr. President and Alembers of the Court.
This is the first tirne Liberia is appearing before this Tribunal. May1,
therefore, begin this written Statement by reaffirming the great respect
in which my Govemment holds this Coiirt. May 1 also express my own
personal, deep senseof appreciation and that of my colleagile,Mr. Moore,
who will be associated with me iii presenting the Oral Statement of the
Government of the Re~ublic of Liberia. at the ~rivileae we eniov at
appearing before this .tribunal. u d .
May 1 add, Mr. President, with your leave, that it is my proposa1 to
Dause at intcrvals of about ten minutes for the Durvose of translation
'ten minutes more or less. Thaiik you. . .
AIayit please the Court. The question raised bythe present proceedings
is exclusively one of the interpretation of a treaty. The Convention
establishing the Inter-Govenimental Maritime Consultative Organization,
a name which 1shall abbreviate in these proceedings to IMCO,provides
in Article z8(a) for the election of a Maritime Safety Committee. 1 need
hardly tell the Court that this body is intended to be a centralorgan of
IMCO. Even a rapid penisal of the Convention shows that. For this
reason, the Article lays down qualifications for membership reflecting
the desire of the draftsmen to create a body consisting of States who,
for one reason or another, are particularly concernedwith advancing the
cause of maritime safety. It is, 1 think, common ground hetween al1
States here represented that this rnust have been the object of those who
drew up the Convention.
The provisions in question-and 1 will not takethe time of the Court
hy going over those provisions-state that of the fourteen Afernhersof
IMCO to be elected to the Maritime Safety Comrnittee, "not less than
eight shall he the largest ship-owning nations". Article 28 (a) also
provides that the remainder shall be elected so as to ensure the repre-
sentation of nations interested in the supply of large numbers of crews
or in thecarriage of large numbers of berthed and unherthed passengers,
as well as the representation of major geographical areas. And, aç if to
describe what must in any case he relatively obvious, the Article refers
to al1 those States as being "Governments of those nations having an
important interest in maritime safety".
Now, the issue in the present proceedings relates to the interpretation
of this Article-Article 28 (a). It is the contention of my Government
that the phrase "of which not less than eight shall be the largest ship-
owning nations" imposes upon the Assembly of IMCO a mandatory
obligation to elect at least those eight States which are objectively to be
regarded as the largest ship-owning nations.
\Vhat, then, does "ship-o\vning" rnean? In the context of the IMCO
Convention, my Government contends that this word refers toregis-tration. A ship-owning State is one in which ships are registered. This
is so because registration is the normal way of creating a connection
between a State and a vessel: and the ex~ression "shi~-ownine" is
iiitcn(lt!d tu rcfcIO ii.liate\.er IIItliijcuiilexr t11enortiiaiiliilsensible
ronnectiiig iactor. For the ~iurposej of a~l\,aiiciiigthe caiis,: of iii~ritinie
safcti.. it is clear tliat this kirtrir of rctisrr~tiuii iiiiist he rt?tniiiisl.II
a co&monplace of international law tcat it is the tat t of registrati&
whose laws operate on board a ship. And since it is a vital feature of
international measures of maritime safetv that such ineasures should he
applied to vessels by the system of municipal law operating on boaid
them, it is clear that the routeforthe apA Lcation of tliose measures must
be through the State of registration.
The fom in which the issue is raised before this Court is that of a
request for an Advisory Opinion as to whether the Maritime Safety
with the terms of the IXCO Convention. My Government submits thatccordance
this question must be answered in the negative, because those provisions
of the Convention to which I have just referred were not applied. The
eight largest ship-owning nations were not elected, in that Liberia and
Panama, at that time the third and eighth largest ship-owning nations
respectively by reference to registered tonnage, were not elected. By
virtue of this fact, therefore, the Maritime Safety Committee was not
constituted-my Government contends-in accordance with the terms
of the IMCO Convention.
1 ha1.c;ilr~n~l\.said tliiitlic tlucsii<iiiiiiv~ilvcrlis oiiéof trcit! inter-
pretatioii. lt i5~uiiccriiedsolcl\ with the dct~.rmii~;itiuiiof ilie iiieaiiiri~:
ofan expression in a Convention to which 39 States have become parti&
for the purpose-and the sole purpose-of advancing the cause of safety
of life at sea. Consequently, matters extraneous to the Convention are
essentially irrelevant to the problem hefore this Court. In particular,
what is irrelevant is the general problem of so-called "flags of con-
venience", or "flags of necessity" as they are sometiines cailed. Never-
theless. sometimes directlv. and sometimes indirectlv. it has been
suggested by States adopti& a position adverse to ~iberiia that Liberian
ships fly what has been termed a "flag of convenience". This expression
hg come to be employed in a hostile and in a derogatory sense. in some
way it is inferred that a State against which an allegation of this kind
is made is guilty of an improper practice and is not worthy to be elected
as a member of the Maritime Safety Committee.
1 deny the tmth of the aiiegations and I deny their relevance. But
1 think 1 am bound, in al1the circumstances, to place before the Court
some explanation of the situation which has given rise to allegations of
this kind. In embarking upon this brief coiisideration of the international
shipping situation, 1 must emphasize that it really has no part to play
in this case. 'Io put the matter in extreme terms, even if every aspect
of the ailegations were substantiated, the factual position would remain
that Liberia is a State in which the third largest quantity of the world's
shipping is registered; that it is the only State which can legislate for
that shipping and ensure the application and enforcement of maritime
safety measures on board those ships; and that. therefore, in the sense
of the treaty, it is one of the eight largest ship-owning nations whose
election to the Maritime Safety Committee was mandatorily required by
the provisions of Article 26 (a) of the Convcntioii. STATEhfENT OF MR. \VEEKS (LIBERIA)-26 IV 60 27 1

The suggestion that Liberia's position is in some \vay tainted or that
her activities in the shipping world are disreputable or improper stems
from the assertion that Liberian flag ships are not owned by Liberian
nationals. This is simply untrue. Liberian flag shipping is in fact very
largely owned by Liherian nationals, that is, corporations established
under the lawsof Liberia. Ofthe eleven million tons of shipping registered
Liberian nationals. Even this quantity-sixthis ivmillion tons-would by be
sufficient to place Liberia fifth among the eight largest ship-owning
nations. However, 1 would be less than frank with the Court if 1 at-
tempted to suggest that these corporations were not in the main financed
by foreign capital. But this is not a matter oii which 1 feel called upon
to make admissionsor apologies to the international shippingcommunity.
Nor would 1 expect other countries, similarly affected. to do so-though
the United Kingdom's flag covers more than one million tons of shipping
beneficially owned by United States corporations; and the flags of the
Netherlands. France. Norwav and Germanv cover nearlv another
1i11li1 I I of S I nl:r iac I fc.~howc\'cr, iliar I iieeil
do rio riiorc rlian refc1,) tivoi~oii.ii~ler:rtiuiii;iliicli re:illrli*criLi-
cisms tliat are so freqiiently levelled against Liberia.
MI. President, the first relevant consideration is that, regardless of
the quantity of tonnage registered in Liberia, Liberia assumes the inter-
national responsibility commensurate with the fact that vessels sail
under her flag. This responsibility is discharged in both national and
international terms.
In national terms, Liberia enacts and enforces legislation relative to
the safety of the vessel and the conditions of those on board her. She
maintains an extensive and efficient maritime administration \\-hich is
concerned, among other things, with ensuring the competence of the
crews and the observance of safetystandards on board Liberian vessels.
Throughout the world there are Liberian Consuls who possess and
exercise iurisdiction over Liberian vessels. In addition. in al1~orts, there
are spec<fiedagencies. such asLloyd's agents or the ~meriCan Bureau
of Shippinp, who assist the Liberian Authorities in ensuring the obser-
vation of Chehighest safety standards.
On the international plane, Liberia discharges her responsibilities by
being a party to the major conventions relating to safety of life at sea,
by being a party to certain IL0 Maritime Conventions and by taking
her share in the functioning and financing of such vital bodies as the
Ice Patrol. And, of course, Liberia is a strong supporter of, and an
important financial contributor to, the work of IMCO. 1 may add,
incidentauy, that her financial contribution. to both of these Organ-
her flag.is proportionate to the quantity of tonnage registered under
In short, Liberia does for her ships essentially the same things that
other States do for their ships.
The second consideration which my Government deems relevant is
perhaps even more important as dispelling some of the assumptions
upon which criticisms have been based. Criticism ofLiberia on the ground
of lack of connection between the vessel and the State of registration
overlooks the fact that today a great deal of shipping does not, apart
from registration, have any exclusive connection with any one State.
Any approach which ignores this fact is based upon a picture of theuvorldof shippiiig which is now largely ontclated. There %as, no donbt,
a time oiice when an identifiable single man might have owned a ship;
when that ship sailed between the State of which its owner \vas a national
and some other State; ahen that ship was captained and manned by a
crew of the same nationality as the owner. This indeed was the case in
Liberia in the second half of the nineteenth centiirv. At that time, a
number of individual Liberians o\viied ships carryiiig mixed cargo from
Liberia to the United Kingdom and the United States; and these were
largely manned by Liberiin crews.
But that is no longer the situation today. International shipping is
tration, it is noiv difficultod.speak of a single simple concept whichs-
connects a ship vith a articular State.
Perhaps the Court wilPpermit me to ilhistrate my point by reference
to a recent announcement which appeared in the major English papers,
including The Times and The Financia Tlimes. On Xovember IO lgjg
a full-page anilouncement vas published relating to an issue in the
English market of fqh million 7 per ceiit. redeemable secured loan
stock by the Aiiglo-American Shipping Company Limited.
Now it is the details of the Company and its operations which are,in
my submission, of considerable significaiice in illustrating the preserit
structure of the international shipping industry. The Company was
incorporated in 1958 in Bermuda, a British Colony, wliere the tax laws
are less stringent thaii they are in the United Kingdoni. Its share capital
was S2& million Bermuda pounds. Approximately 70 per cent. of these
shares are o\rrned by Norness Shipping Company, Incorporated, a
company incorporated inPanama, which is itself substantially owned by
Erling D. Naess, a United States citizen who \vas at least until 1946 a
Nonvegian citizen. The Company will own five vessels, al1of which are
registered, or to be registered, at United Kingdom ports. One vessel,
the smallest. is under charter to a British Company for 15years. Another
is under charter to a German company for a penod of S years; a third
to a Dutch company which is a wholly-owned subsidiary of an American
oil company for 5+years; and the fourth and fifth toaRermudacompany
ushich is a wholly-omned siibsidiary of another Amencan oil company.
each for a period of fifteen yearç. During the period of the charter, it
is probable that only two of the vessels urill visit the United Kingdom,
namely, one, the smallest, which will carry iron ore to the United King-
dom, and another which will carry oil from the Middle East ta European
ports. The other vesselswill be engaged in carrying coal from the eastern
seaboard of the United States to Northern Europe and crude oil from
are to he managed hy Naess Denholmthe Ph&lCo.Ltd., a company incorpor-
ated recently in England, of which 60 per cent. is owned by Naess
Shipping Company Inc. (an American Company) and 40 per cent. by
J. fi :.Denholm, Ltd., of Glasgow. In addition, diiring the penod for
\\.hich the loan stock is outstanding, the Company excludes its nght to
mortgage the vessels.
In short, we have here a situation in which it is virtually impossible,
apart, that is, from registration, to associate any particular vessel in
a realway with any one State. The owner isincorporated in one temtory ;
the vessel flies the flag of another; is chartered to iiationals of a third
for a consirlerahle portion of its workiiig life; is financed with capital ST.YrE)iIEST OF \IR. WEEKS (LIBERI:\)-~~ 1\'60 '73

raised in several States; and in some cases is devoted to a typeof camage
which willnever bringit near its home port. There are other cases inwhich
one must qualify the concept of ounership, first, by the realization that
the freedom to dispose of thevessel is severely restricted by the existence
of mortgage debts secured by the vessel's earnings and, secondly, by
awareness that the mortgagees tnay possess a different nationality to
that of the mortgagors. In addition, insurance aiid management are
also factors which introi-luce diverse national elemcnts.
The example \\,hich 1 have just given does not stand alone. IVith the
Court's leave, 1 should like to read a passage lrom an issue of The
Pilot te publication of the American Xational Alaritime Union. The
extract, \\.hich is written in somewhat journalistic style. appears in the
issue of February II,1960. It relates to a fleetof sixteen ships which Ry
the Nonvegian flag. The extract runs as follo\vs:

"A typical arrangement \vorks this ivay: Global Bulk Transport
and Revublic Steel oreanized a Paiiamanian comoanv. Tankore.
ank kor thcn entered-into a long-term contract'wich Republic
Steel calling for the carriage of iron ore to Repiihlic plants. On the
streneth of tliis contract Tankore built shii~s in Tapan. Then. to
obtaih registry undcr the Xorwegian flag aiid to pibtéct these ships
against unionization by American maritime unions, the ships are
transferred to NorwegCan corporations.
Norivay's laws require ships under the Xorwegian flag to be
owned 60 per cent. by Xorwegian citizens. The other 40 per cent.
is owned bv Global Transport and Revublic Steel throu~h the-r
panamanian Company, ~ankore. The 6o'pcr cent. Normegianowner-
ship is only a front. however, covered by purchase agre.ments or
môrtgages held by the American principali."

Xoiv it is needless to say that 1 do not subscribe to the suggestion
implied in this passage that theres something wrong \%rith\vhat Republic
Steel is doing or with the way in which the Norwegian law permits
Republic Steel to do it.1 merely point to the episode as illustrating both
the erosioti of the concept of simple ownership and thediversity ofnatio-
nal interests in any particular ship.
The fact is that, havin regard to modern corporate development, it
is frequently extremely !ificult, if not impossible, to determine with
precision who is the oumer of a ship and with ivhat country he is most
closely associated. One need only point to one of the world's greatest
and most respected industrial concerns, Royal Dutch-Shell, which is an
organization of Companies apparentiy spanning at least two countries
and with a shareholding which may spread over many others.
1 have gone into this detail because 1 believe that it shows that it is
now no longer possible to speak of a "normal practice" in shipping

which calls for a close or exclusive association between a vessel and a
particular State. In the absence of a normal practice, there seems to be
little substance in the suggestion that the action of the Covernment of
Liberia is open to criticism as a departure from appropriate standards.
Mr. President and Members of the Court, haviiig said this much to
help put the position of Liberia into perspective, there are two other
matters to jrhich 1 shouli-lrefer. In the first place it mav verhaps be of
assistaii<:if I iiieniii~ii s<,i(81.rlic cuii.ii~'ler;itiuns\i.liich Ica0 sliip
otiiiçri ;incl operators place their vrisrls iintlcr forcigii ilags. Siiiiir of STATEhIENT 012hlR. WEEKS (LIBERIA)-26 IV 60
275
ship may be enforced in any foreign jurisdiction where the ship may be.
In explaining why foreign registration takes place and in particular
whv ships are reei.,ered in Liberia, 1 think 1 should also make it vlain
tliittlic'rr arc certain rt-nsoiiswliiclido iiot iq>?ratc iiirliis coiiiit.itiuii
ln rhc tirs1 plisie, furrigii .>pzrat<,rsdu nor plarc tlieir \,cjjcls iiiiilt:r tlic
1.iLcriaiihr< hcr;iiisï rliev ii.i.;hto lo\\.rli~stxii<larduf crcn. sondirinns
or of ships"Safety. 1 do hot think that there is any dispute about this.
In respect of wages, those paid to the crews of Liberian vessels, though
lower than those paid to United States seamen, are, nevertheless, among
the highest paid in the rest of the world. As regards questions of safety,
Liberian standards rank among the highest. The Chairman of Lloyd's
Register of Shipping said in his Anniial Report for 1957, which was
published in 1958:

"It would not be out of place to make it clear that in cases where
factors affecting safety come within the Society's scope,no deviation
from intemationally accepted standards is permitted, whatever the
vessel's flag. Ships classed with Lloyd's Register which sail under
'flags of convenience' are reauired to conform to the Societv's
standard of strength and efficiêncy in exactly the same way as
registered elsewhere and must undergo the same periodical surveys
to~ensure that they are maintained ?Othose staidards."

The same point bas been cogently stated by the Chairman of the
American Bureau of Shipping in a speech quoted at page 192 of the
U'ritten Statements in these proceedings, and with the exact words of
which 1 do not think 1 need trouble the Court again. In this connection,
it is of considerable significance that 49percent. of Liberian tonnage is
under five years of age-a figure unequalled by any other State. At the
other end of the scale,Liberia's record in having only 3 percent. of ships
over 25 years ofage is equalled by only one other State. There can, under
these circumstances, be no basis for any allegation that Liberian regis-
tration is sought by shipowners who underpay their crews or who evade
compliance with international safety standards.
1 should add in this connection that it is not only the so-called "flags
of convenience" countries, such as Liberia and Panama, in which regis-
tration occurs as a result of the operation of these factors. There are
over a million tons of United States shipping under the British flag; and
it is well known, and is illustrated by the Naess episode which 1 have
mentioned in detail, that these factors have been particularly important
in Bermuda, in the Bahamas and in Hongkong which are of course ail
United Kingdom dependencies. Again, their operation is singularly well
iilustrated bv the fact that in the vast vear the Greek merchant marine

of existing s6ip mortgages.
Perhaps one other consideration affecting the whole question of foreign
reestration should be mentioned here. It is that reeistration. while no
doiibt coiifirriiig bCnctiii oritlic \çj~çl~ cun~criic~l.also inipcscî IIIMJII
tlicni t.i>rrclari\.eohliq,~rii>n;.\1y i;o\~criiiiirlia< :rlrra<ly in<lic,rreLiln
its\\'ririeii Statciiiriit tlcurïiii IO \i.liictlirI;r\v-i.ftlici;ratc of rrcis-
tration are applicable to vessels flying its flag. This means that sGchvessels are, of course, subject to various sovereign acts of the foreigii

fla~ State-such as modification of the relevant substantive law, changes
in The tax rate, aiid even possibly requisition or expropriation. Owners
\vho seek foreigii registration accept these risks. Rut the point which 1
seek to make here is that in selecting any one particular State for
registration the oumers exercise the same discretion as does any other
persoiimaking a foreign iiivcstment. They choose to associate themselves
witb States iii which there is a satisfactory climate for investment and
in which, accor<-lingly,they have confideiice.
IIr. President and Jlembers of the Court. having explained urhy it is
that shipoumers seek foreign registration, 1 should perhaps also add a
fe\v words esplaining the basis for the existence of registration facilities
in Liberia. At the outset. 1must explain that the Liberian Maritime Law
was not devised as a deliberate attempt to establish a special system of
easy registration designed to subvert the existing system of national
registratioii. Nor was it primarily iriteiidecl to create a source of national
reveiiue. Iiideed, the iiet revenue now derived by the Government from
Liberia11flag vessels forms a comparatively small part of the iiational
budget. The fact is that the Liherian Alaritime system \vas established
in the exercise of Liberia's sovereign desire to promote a national

merchant marine.
In this connection, two facts about Liberia may not alivays be appreci-
ated. The first is that there are a considerable number of her population
who, hy tradition, have becn active as seafarers. There is a tribe called
"Kru", which is simply the transliteration of the English word "crew",
mhose members are al1Liberian nationals but who are scattered up and
down the African coast acting as sailors. There are eaen groups of them
to be found awav from Africa. One of the obiects of the Government of
Liberia in enactrng its maritime legislatioii ;,as to develop a merchant
marine which would in due course absorb and employ these versons.
Secondly, Liberia exports large quantities of raw mite;ials, pariicularly
iron ore, rubber, piassava which is palm fihre, and coffee. Again, the
Government was and is anxious to promote the development of
a merchant marine wbich would eventuallv be available for the carriare -
of those commodities.
In short, the development of a large fleet, consisting mainly of buk
carriers. was an almost incidental conseauence of leeislation desianed
primarily for another purpose. At the saine time, the Goveriimett of
Liberia saw no reason why it should actto prevent foreign operators from
registering their shipsunder the Liberian flag provided that tbis iiivolved
no elemeiit of abuse. And there lias been no abuse of this riglit either

in terms of Liberian Law or in terms of international la\\,.
Indeed. al1 that has ha~~ened is that Liherian flae vessels have come
into strong competition wjih certain classes of transport services provided
by the ships of some of the traditional maritime nations. 1 may say in
p&sing thit there has been some tendency to exaggerate the impact of
this competition on the growth of the fleets of the traditional maritime
States. It is not without significance in this coiinection that some of tliese
competitive fleets have increased substantially in size since the Second
\L70rld\Var. The United Kiiigdom fleet, for instance, is no\\, more than
three million tons larger than it \vas in1939, despite \var losses of some
Ir+ million tons; and the Non1,egian fleet has increased by j? million
tons,despite ii-ar losses of over z millioii tons. STATESLEST OF hlR. WEEKS (LIBERIA)-26 11.60 277

Nevertheless, the countries affected by this competition have opposed
it. just as they have opposed other elements of competition such as the
system of cargo preference or of foreign State subsidies to shipping. The
present proceedings may, 1 believe, be regarded as a reflection of this
reaction to competition. Commercial opposition to the role of the
Liberian fleet appears to have led the Governments of a number of States
with established interests in maritime transport to oppose Liberia's
development as a maritime nation. 1 believe that this attitude may \\.el1
be the inarticulate premises underlying the approach of a number of
States to the problem of nationality of ships as examined in the Inter-
national Law Commission and at the First Geneva Conference on the
Law of the Sea. Even more clearly, it explains \i,hy, in the forum of

IMCO, those States opposed the election of Liberia tothe Maritime Safety
Committee. In the view of my Government, it is a matter of genuine
regret that commercial considerations shoiild have been allo\r.ed to
intrude into the establishment of a technical body such as the Maritime
Safety Committee. There really \vas no need to take opposition so far.
The view that my Government takes of the position is that as a
matter of sovereign right it is entitled to develop its merchant fleet
even if that developmeiit takes place with foreign capital. There is,
after all, no impropriety in the acceptance by a State of large sunisof
foreign capital for the development of its interna1 natural resources.
Indeed, the high level of the flowof both public and private international
investment is one of the outstanding phenomena of the current economic

scene. \Vhy then, it may be asked, in terms of the legal iiiterest of the
recipient, should a distinction be drawn between capital invested, say,
in an irrigation project and capital empl.ve. in the extension of a
merchant fleet?
The Liberia11merchant fleet even now is making, and will no doiibt
in future years continue to make, a general contribution to the economy
of the country which cannot be measured simolv in terms of direct
financial advintage to my Government's treasÛri. It is, moreover, a
fact-too often overlooked-that this form of investment has led to the
development of a fleet which has made, is making and \vil1 coiitiiiue
to make an important, indeed a vital, contribution to international
transport.
With your leave, 1shall turn no\v to examine the substantive questioii

involved in these proceedings. It is my object, in this part of rny state-
ment, to avoidrepetition of the case \\.hich Liberia bas already submitted
to the Court in its Written Statement. I shall therefore examine only
those points raised in the Written Statements of other States which, in
my Governments's view, cal1 for specific answer. Nevertheless, 1 \vould
like, for just a brief moment, to recall the principal contentions submitted
by the Govemment of Liberia in its \Vritten Statement.
The case of the Government of Liberia rests upon a statement of fact
and a proposition of law. The statement of fact is not disputed. It is
that Liberia and Panama mere at the material time, namely, the date
of the election of the Maritime Safety Committeeon January Ijth, ~gjg.
respectively the third and the eighth largest ship-o\vning States in the
morld, in termsof quantity ofregistered tonnage.The proposition of lau. is

aç follo\r.s.Having regard to the statement of fact just made, and to the
terms of Article 28 (a) of the IAICO Convention, Liberia and Panama
nere eiititled to membership of the Maritime Safety Committee. As STATEhlENT OF LIK. WEEKS (LIBERIA)-26 11' 60
279
quality and would amount to replacing it by another test based on
additional criteria.
This, in other words, would amount to a revision of the clear terms of
the Convention.
On these short and clear substantive grounds Liheria contends that she
was entitled to election to the Maritime Safety Committee. In the sub-
mission of my Government, the right thus created by the positive
direction that the Committee shall include at least the eight largest
ship-owning nations is in no way affected by the presence, in Article
28(a), of the word "elect", or the phrase "having an important interest
in maritime safety". In any event, as a matter of construction, .the
largest ship-owning nations must be regarded as possessing an important
interest in maritime safety.
Since the Members of the Assembly of IMCO did not discharge their
duty to elect Liberia and Panama to the Maritime Safety Committee,
the Committee cannot be said to be constituted in accordance with the
Convention
'l'licrii :liiial :tr<iiinc:ni~liiilonly aria-$ iiithi3c\,ciittli.rrlicCoiirt
sliuiild c,,nsiclicr,r<iiirrarytu th,. ~iriiiiil,:il.uliniufsin!i1 ;ovt~riiriient.
tlint tlic\lenibers r,f I\liO tic~v~"raiitr\l a ,li,crrtioii in iuniiest:iiiiirli
the election of the eight &est ship-~wnin~~nations. This argument is
that the Committee was not constituted in accordance with the Con-
vention. because the Members did not comvlv with the reonirements
of tlic c~nstitiitioiial Ia\i of thc Organizatioii. 'li;~>articular,~ia\:iii~r,:~ar~l
ru oIIcliccirciinistaiircs. tlie failiirr uf certain .\lernbcrs ro votc for 1.ibc.ria
and Panama must be regarded as an abuse or a détournementde$ouvoir.
We propose to deal, in the first instance, with the principal points
made in the Written Statements of those States which have adopted a
position adverse to that of Liberia, that is, those States which contend
that the election now in question was valid.
The Wntten Statements in question are those of France, Italy, the
United Kingdom, Norway and the Netherlands. To consider each of
these Statements individually would be repetitious. We shall therefore
examine these Statements analytically. Where the same point appears
in more than one Statement we will deal with them collectively. Where
a point appears in one Statement only, it will be referred to at the
appropriate point in my Government's observations.
The maio, ~o.tion of mv Govemment's statement will. therefore. be
,l,.\,or<J10 :lit:central c~iiiciitioii cuninioii tc, ïacli of rlit.s<:\\'ri~tcii
51:iter11~111s-rlicc~nti.lltii)ll111:it.Arric23 (,I,cunfcrrcil iipuii rlie .\lem-
I,crs of 1\1('0 x <liicrt.tio>îiirticiciitl\. \rit<iriiritlr. rhcni 1,-zitiiiiatclv
to refrain from electing Liheria ana Panama to the Maritime safet?
Committee. This point, which 1 have just referred to, will be developed
by my colleague Mr. Moore immediately after 1 pause in a few seconds
for the interpretation. After that, 1 shall examine a numher of points
which have been dealt with in a more subsidiary manner, such as the
contention that registration is not the appropriate test for determining
the size of a ship-owning nation. 2. ORAL STATEMENT OF Rlr. XOORE
(REPRESESTISG THE GOIrERX>1EST OF LIBERIA)
AT THE PUBLIC HEAKISGS OF 26 APRIL 1960

Mr. President and hlembers of the Court.

Before 1 resume the statement of my Government, may 1 just take
this opportunity to associate myself most sincerely with the opening
remarks of Dr. \\'eeks. 1am very conscious of the privilege which 1enjoy
in appearing before you.
proceedings-theve issue which may be called the "discretion" issue. It these
may be stated in the form of a choice between twoalternatives: the first
alternative is that in electing the first eight members of the Maritime
Safety Committee, the hlembers of IbICO are given a discretion so wide
that its exercisecarinot be questioned. The second alternative is that the
Members of IhlCO are obliged, on the other hand, to elect in the first
category of membership of the Maritime Safety Committee those eight
nations which are objectively the largest ship-owning nations. If theint
alternative is correct, then the only basis for questioning the constitution
of the Committee would be the failure of the Assembly to act in a consti-
tutionally correct manrier. If the second alternative is correct, then the
Committee is not properly constitutedunless Liberia and Panama caiiiiot
both properly be regarded as being among tlie eight largest ship-owning
nations.
The principal argumeiit addressed to the Court in the \\'ritten State-
ments of those States \\.hich contend that the election was valid is that
Article 28 (a)confers upon Members a virtually unfettered discretion in
exercising their votes. The terms of Article zS (a) are, these States
contend, nothing more than directives; and, in effect, the votes cast by
States cannot be challenged.
Five main types of argumeiit are advanced in support of this principal
contention by those States which maintain that the electioii was valid.
The first is based upon the effect of the use of the verb "elect" in
Article 28.
The second is based upon tlie effect of the words "having an important
interest in maritime safety".
The third involves iiiterpreting the phrase "of which not lessthaii eight
shall be the largest ship-owning nations" in such a way as to make it
read: "of which not less tlian eight shall be from aniongst the largest
ship-owning nations".
The fourth argument tiirns upon the effect of the alleged vagueness of
the expressioii'the largest ship-owning nations".
The fifth argument relates to the alleged danger of an automatic te-.
Rtr. President and Members of the Court, 1 propose now to deal in
turn mith each of the fivearguments mhich relate to the alleged existence
of a discretion.
1 shall, therefore, turn first to the argument based upon the effect of
the word "elected" in Article 28 (a). STATEMENT OF MR. MOORE (LIBERIA)-26 IV 60 281

In at least four Written Statements, those of France, Italy, Norway,
and the United Kingdom, reliance is placed upon the use of the word
"elected" in Article 28(a). The concept of election, they contend, involves

an element of choice or selection. This element, the argument continues,
is incompatible with an obligation to "elect" certain States automatically
by reference to precise, ohjectively ascertainahle criteria.
The first defect in this argument is that it appears to assume that the
word "elected" is deprived of its function in Article 28 (a) if Members
are placed under an absolute obligation to choose as the eight largest

ship-owning nations those eight which are ohjectively the largest. With
respect, this assumption lacks fonndation. As used in Article 28 (a) the
verb "elected" covers two other situations in which an element of choice
is permitted. The first results from the use of the words "of which not
less then eight shall be the largest". The words "not less" mean that

Members are eive<.a rieht to,.lect wh~t~ ~ the numb~r of~ ~~ ~ ~ ~ ~ ~
~~lice~~iby rvfcrcncc ri>rlir ti.itof six sli;~ll Ije iniilyciglir ,tr jhall hc nitir,:
tliaii tiglit. si.ci>ii(lltlic\vurd ",-lt!ctU ~vliiiiiiî~il&; tu rlicurlicr incnil~crs
uf rlie C'oinmirtc't!covcrs tht rie111 tir .\lcmbcr Sra~c~ ~~ ~~d choosv tlit,jz
members of the Committee whz are not~selected by reference to the
criterion of size alone.

The second defect in the argument based upon the use of the word
':elected" is that it fails to recognize that the mere use of the word
"elected" is not an open invitation to the exercise of an unfettered
discretion. A discretion can only exist to the extent that it is granted
by the instmment conferrin the power of election. This has been made
clear beyond doubt by the C!?urt in the Advisory Opinion on Conditions

of Admission where it was stated that a power can be exercised only in
conformity with the terms of the instrument granting it. Both in the
international and the municipal spheres it is a normal phenornenon that
the element of choice involved in an election is limited by conditions
relating, for example, to the qualifications of the candidates. These

conditions can in certain circumstances be so restricted that the process
is virtuallv none other than a forma1 one of identification. That is. in a
seilsr, thr. i;~iv 111 tlic ],rcsciir insiaiici...\iiiltli,.rt. iiiu r~:wuii ru belicve
tlii~r intcriiari~~n:iI1x1~ha; ci~d,,!vt~l1117!vurLI '~I~~~~riu!i~ i"ith$0 Ii:ird a
curt of tli? vlriiiciit uf cli,iicc:or ,lisrritioii 1h:~t it i.niiiiot Iiro\.crri.l,lcii
by the other terms of the Article or by the circumstances of the case.

It would be wrong to assume-as the argument based on the word
"elect" does assume-that it is impossible to describe as an election a
purely forma1act which endows a given legal person with juridical status,
even though the electors are given no opportunity to select or choose
between varions alternatives. Election can imvlv choice but it does not
iieccssarilg retliiir~.slioict~. Ir is caiv to criviîngz .R .iiitlc v;iriery uf liulitic~l

coiitïxti iilicrt iiia sittiation dcscrihcrl :trielcrti~,ii tlii. clrcturi Ii.i\.c.
no real scove for choice. because there mav be onlv one candidate for the
post, or, in'the case of a number of vacancies, only so many candidates
as there are vacancies. And there may be other factors which eliminate
the element of real choice.

It is, 1 submit, of considerable significance in this context, that in
Article XI of the Rules of Procedure of the Food and Agriculture Organ-
ization,"election"is defined for the purpose of the Rules as the "selection
or appointment of one or more individuals, nations or localities". This
definition is clearly wide enough to include as an election a situation in

20282 STATEIIEST OF AIR. MOORE (LIBERIA)-26 IV 60

which the electors could exercise no discretion whaisoever. Again, in
Rule ,2 o~ t~ ~ ~les of Procedure of the Assemblv of the World Health
Or,qliiii/atiuiiitij1,ruvirlc~ Ii;ii"iftlit:nuiiil~~~orf'caii~liiln~~orc.lc.cri\.c
oniir iIi.+siioi [xciid 1111 riiiiiilofri>fiics to LI. i:llc~l,no ballot jliall
br rcriiiircr:tnrlbiii:Ic:in,liihtc.j slidll hr dril:ir<~(lclt.ctrrl"sl~ort,tiie
word "elected" is employed to describe a purely formal process. ~nother
example is provided by the Rules of Procedure of the Assembly of the
Council of Europe ivhich provide in Rule 9 that during elections in
certain circumstances in the event of a tie, "the candidate senior in age
shail be declared elected". Yet, though the word "elected" is used, it
can be seen that. u.on analvsis, th. election was not due to choice but
to an objective factor, namely, age.
There is, therefore, nothing in the use of the word "elect" which
excludes the possib'ility that electors may be doing nothing more than
formally identifying a person who satisfies an objective criterion. As the
examples which 1 have mentioned show, the word "elect" has been and
is used in international oreanizations to descrihe the Drocessof collective
identification involved in Jeterminhg theStates which satisfy the criteria
relevant in the particular case.
The use of a process of collective and formal identification in the
present instance is called for because size as a ship-owning nation can
and frequently does change during any given period of four years. Clearly,
it would not be practical if such changes in size were to.give rise auto-

matically and immediately to changes in the composition of the Maritime
Safety Committee. Consequently, it becomes necessary for the Assembly
at each of the four year intervals to identify afresh those States that
satisfy the criterion of being the eiglit largest. Although this process of
identification may be almost automatic, it is nevertheless of sufficient
importance, having regard to the status of the Maritime Safety Com-
mittee, for it to be delegated to the Assembly as a whole.

[Publi hcearing O/26 April1960, a/ternoon]

Mr. President and Memhers of the Court, having provided examples.
fromthe Rules of Procedure of at least three international oreanizations.
to demonstrate that the word "elect" can be employed to mean appoint-
ment or identification on the basis of objective criteria, such as age and
size,1 pass now to a subsidiary argument employed in connection with.
the use of the word "election" which has been advanced by the Govem-
ment of Norway at page 243 of the printed volume. The Government of
Xorway points out that the word "elect" is used in Article 28 to describe.
the process both of identifying the eight largest ship-owning nations and
of selecting the six other members of the Maritime Safety Committee.
The selection of the latter six clearly involves the exercise of an element
of choice and discretion. The Government of Norway then says that
"it would he strange if the word "elected" were used in one and the same
sentence of the Convention in two fundamentally different senses". In
consequence, the Government of Nonvay coucludt:s that the word
"elected", when used in relation to the eight, also involves the exercise
of an element of discretion, such as exists in relation to the six.
This contention is open to tu70objections.
In the first place, it is not correct to Say that the word "elected" is.
being used in two different senses in the same sentence. It is being used STATE.\IENT OF hlR. MOORE (LIBERIA)-26 IV 60 283

on both occasions to descrihe the process of formally conferring upon
certain Afembersof IMCO thestatus of a memher of the Maritime Safety
Committee. The only difference hetween the two situations is that the
conditions affecting "the eight" are different from those affecting "the
six". But the fonnal process remains the same.

The second objection to this Norwegian contention is that there is no
valid reason for assuming that in every case in which the same word is
used in the same instrument it must of necessity bear the same meaning.
The assumption may be correct in many cases, but it is not invasiably
true, and Article 28 provides not merely one, but two, examples of the
differing use of the same word in a single provision.
In the first place, the word "elected" covers not only the choice of
what we mav calluthe six"-it also describes. as 1 have alreadv mention-

cd, tlic <leci;iaiiinf thc \It,niht:ri iitit:tli<:r<irnotr,tnhe ~~lvaiiqc of tlir:
Iib~~rrycreate,l hy tlic \i.i~ril;'xt Irx~t" \\hich appr;ir in r<,l;iri<in tc,the
elrcrion ni' th^.t.i~lii": for i\lcnihcr; niiclitiftliev \vislic~l.clvsi to ~tiuuse
more than eight çtatés on the basis or the critérion of Size.
The second example is provided by the word "interest". It is not
im~robable that this word. when used in the ~hrase "an imuortant
intercst in innritiiiii. snfety". is alsu hini: cinlilu!.r.<liiiat Icx~ttivhi;t-iisc.s
iii Article 2h /<O. l;or il is <Iiffiriilttd regard al1foiirtecn Stitrcj \rliicti are

elected ro rhe i\lariiiiiit. Snfctv ('ornmirret: hv refercncc tu (lifivrïiit criteria
as having an interest of the'same kind inmaritime safety.
Finally, there is yet another argument employed in connection with
the use of the word "election" in Article 28 ,a. which 1 should mention.
I2cfcrciice 8.;ni;~,l<i.nrlie\\'riii~~ii .ii:~tçiii<i,ftth,: (;o\.ernmcnt of Ir;tly
at png? 22.1,IO tli~clti~ligeiiitliruoriliiig of ;\rricl<.?Y (CI,fruni "select ioii"
to "clcction" iiiarlr, ilnriii~'tlii.!ri>,~I(X i>rP)f>.ir.it~iref~the ('OIIVC~I~IO~.

The Italian Governmentvcontends thât the word "selection" implies
choice, and that the change to "election" effects no change in the meaning
of the Article. Mv Government would merelv wish to draw attention to
rlie facr that II,,;xplnriaiiiin <if rlic cli;iiig~cnii 10,.fiiiiiiiiith,: tr,ti~iir<r
priporui~irr~ç,to \\.hich ;i murc i5t rtfcrlrici is gi\,i.n ;rt paqc 103of iiiy
1;n\t:rrinientsi; \\'ritt~ii St?tt;nit-tit. 111t1it.j. c~rr~~in~i;ii~~n~it~1,lin\ ing
regiril tt, ttigrii<.rall).jiniilitr mc;~iiiiigof 111,t\ui \\airil.;.i15 iiibrc tti:~n
doubtful \i.licilic.r nriy .sigiiiticancL~ \i.liats<~rvi~<r.:intiranttnclic~l t,~ the

alteration. In anv event. whichever word is used-election or selection-
neither eliminafes the mandatory requirement that the eight largest
ship-owning States shall be members of the Committee.
Mr. President and Members of the Court, 1 turn now to the second
priii<:il>alargunicnt tiliicli ti.~;1jt.t.11d\~iiiccd hy jomc (;tiv~~riiiii~:iit iii
favuur bf tlic vxiîti~iiceof a \vide mciisiirt (if<liscritinii 'l'hg: ;~>v~~riiin~~nt
of Italy liai (oiit?nilcil rliar ttiq::\se~iiihl\~is frc,: n~t ru elcc,rvveii oiic of

the eight largest ship-owning nations on the ground that such a nation
may not have an important interest in maritime safety. As the Italian
Government puts it, at page zzr, "the quality asked for first of all, and
the one to which others may be added, but which they cannot replace,
is that of preponderant interest in maritime safety". And, the argument
of the Italian Govemment continues, since the determination of the
existence of an important interest in maritime safety is a matter calling
essentially for the exercise of a subjective discretion, there is no basis

on which the validity of the election can be challenged. 2S4 ST.4TE3IEST OF >IR. >IOORE (LIBERIA)-26 IV 60
. As to this, 1 should Say that \\,hatever mfy be the effect of the words
"an important interest in maritime safety , the critical point in the
present proceedings is that the reference to an important interest iii
maritime safety does not stand aloiie. It is qualified by the inaidatory
obligation upon memhers imposed by the phrase which follows-"of
which not less than eight shall he the largest ship-owning nationsv-to
elect those eight States which are the largest ship-owning nations.
Yet, the Italian Governnieiit suggests that other qualities may be
added to, but cannot replace, an important interest in maritime safety.
The way in which this suggestioii is supported is twofold.
In the first place, the Italian Covernment states (at p. 221) that it
arrives "at this result without any difficulty by a literal interpretation
of Article 28". To this 1 would submit the following reply: A strictly
literal approach does not support the Italian conclusion. If a literal
approach to Article 28 is pursued to the full, it cannot fail to take into
ship-owning nations". Literally interpretatedht s"shall" means "must".
The eight largest ship-owning iiatioiis musl be elected to the Maritime
Safety Committee.
Nor can there be any question here of inconsistency between the
obligation to elect the eight largestship-owning nationsand theobligation
simultaneously imposed to elect only those which have an important
interest in maritime safety. "An iniportant interest in maritime safety"
is so clearly a \vide and flexible concept that in my submission it is
difficult to believe that the draftsmen of the Convention could possibly
have thought that one of the eight largest ship-owning nations might
not have had an important interest in maritime safety. Curiously
enough, even though the Netherlands Crovernment generally opposes
the position taken by Liberia, this is one of the conclusions reached in
its Written Statemeiit. In Section12 (a)ofits Conclusions, which appears
at page zjzof the printed volume, the Netherlands Government states:
"As regards eight of the fourteeil members of the Maritime
Safety Committee the important interest in maritime safety shall
be evidenced by the fact that those members are the largest ship-
owning nations."
Indeed, upon close scmtiny of Article 28 (a), it becomes apparent
that the draftsmen clearly coiiteniplated that the largest ship-owning
nations would have an important interest in maritime safety. On reading
Article zS(a) the Court will of course observe that provision is made for
t\vo classes of members of the Committee-the class which we may cal1
"the eight" and that which may be called "the six". Both groups, it
can be seen, must have an important interest in maritime safety. 1
would now invite the Court to notice that the terms in which this
requirement is expressed in relatioii to the second group, "the six", are
as follows: "and the remainder shall be elected so as to ensure adequate
representation hy Memhers, governnients of other nations with an
important interest in maritime safety, etc.". Now, it is the word other
to which 1 would like to cal1attention. The use of the word "other" in
this context, namely, "other iiations with an important interest in
maritime safety", clearly implies tliat there has already heen a refererice
to some nations with an important interest in maritime safety. \mich
nations are they? On looking back through the earlier lines of Article286 STATEIIEIET OF >IR. hlOORE (I.IBERIA)-26 1\'60

of possession of an important iiiterest iiimaritime safety. Although
it has in fact already been madein the Wntten Statementof my Govern-,
ment. 1 ask for the indulgence of the Court in repeating it.
At page 66 of the Liberian Statement reference is made to the passage
in the Advisory Opinion on Conditions O/ Admissionto theUnitedNations,
which may be found iii the Reports of the Court for 1948,page 57, at
page 64. ln this Advisory Opinion the Court applied the principle that
special conditions override geiieral ones. The Court \vas invited to find,
in a general statement of the responsibilities and powers of the Security
Council, contained in Article 24 of the Charter of the United Nations, a
power to override the specific coiiditions for admission laid down in
Article 4 of the Charter. As to this, the Court said:
"It bas been sought to base on the political responsibilities
assumed by the Security Council, in virtue of -4rticle 24 of the
Charter, an argument justifying the necessity for accordiiig to the
Security Council as well as to the General Assembly complete free-
dom of appreciation in connexion with the admission of neu, Mem-
bers. But Article 24, owing to the very general nature of its terms.
cannot, in the absence of any provision, affect the special rules
which emerge from Article 4."
In the present case, it may be said that the specificwords "of wliich
not less than eight shall be the largest ship-omning nations" bear to the
general words "having an important interest in maritime safety" the same
relationship as Article 24 of the Charter \vas held to bear to Article 4.
The reference to "an important interest in maritime safety" caiinot
thus ovemde the effect of reference to size as a "ship-owning nation".
1 inay add that the same priiiciple was applied by the Permanent
Court of International Justice on at least two occasions. One was the
Judgmeiit on GermanInterests in Polish Upper Silesia (Merits). There
the Court said, at page 33 of Senes A, No. 7, in interpreting the relatioii
between Head II and Head III of the German-Polish Convention of 1922:

"As Head III contains special regulations constituting a dero-
gatioii from the regime established under Head II,it is necessary,
inorder to define the sphere of application of the clausescomposing
Head III, to begin by construing these latter clauses and not the
more general rules contained in Head II."
Again, the Court made some even more pertinent remarks, in the
case of the Serbian and Brazilian Loans. At page 30 of Series A, Xos.
20 and 21, the Court said:
"...it is sufficient to Saythatthe mention of francs generaily caniiot
be considered as detracting from the force of the specific provision
for gold francs. The special words. according to the elementary
principles of interpretation, control the general expressions. The
bond must be taken as a whole, and it cannot be so taken if the
stipulation as to gold francs is disregarded."

This concludes my reply to the argunients alleging the overridiiig
effect of the requirement of the possession of "an important interest
in maritime safety".
Mr. President and Members of the Court, 1 wiUiiow move oii to con-
!ider a third argument \vhicti has beeii iised in support of the existelice STATEMEKT OF MR. XOORE (LIBERIA)-26 IV 60 287

.of a discretioii affectiiig the election of the first eight members of the
Maritime Safety Committee.
This argument appears at page 28 of the Written Çtatement of the
French Government. The French Govemment contends that Members
of the Assembly were entitled to refrain from voting for Liberia and
largest ship-owning nations" should be read as "of which not less than
eight shall be chosen from among the largest ship-omrningnations".
My first observation upon this suggestion is as follows: Accepting the
validity of the doctrines of the "plain and natural meaning" of words,
and of "literal interpretation",which have been invoked by those States
which adopted the same position as France in the election, there ivould
appear to be no basis for the French contention. The phrase "of which
not less than eight shall be the largest sh'ip-owningnations" simply is
not the same thing as the phrase "of urhich not less than eight shall be
from amongst the largest ship-owning nations". It is neither a natural
nor a literalinterpretation to ~eadextra words into the phrase.
If it had been the intention of the parties to incorporate the idea
reflected in the wording which France now proposes, it would have been
perfectly possible for them to do so by expressly adding those words.
Alternatively, the same result could have been achieved by omitting the
word "the" before "largest ship-owning nations" and converting "largest"
into "large", so that the phrase would have read "of which not less than
eight shall be large ship-owning nations". Either of these courses mould
have made it plain that there was to be a category of large ship-owning
nations from which any eight might be selected. But neither of these
courses wasadopted; and it would be straining the language of the Article
in a manner amounting to revision if either of the alternatives considered
above were to be read into the present text.
Nevertheless, the French Government supports its contention by a
reference to the terms of Article 17 of the IMCO Convention, which
zation. The French argument, which is at pagee Co28cand following of the
printed volume, would appear to be as follows: For the purpose of
determining the composition of the Council,Article 17createsfour classes
of members-those with "the largest interest in providing international
shipping services", those uith "the largest interest in seaborne trade",
and two classes with only "a substantial interest" in each of the matters
just referred to. As the expression "the nations with the largest interest
in, etc." has been construed in practice as meaning "from among,the
nations with the largest interest in", so the French argument runs, it 1s
permissible to apply a parallel construction to the phrase "the largest
shin-ownine nations" in Article 28 fa).
ouite ap&t from the fact that the t&o Articles relate to different organs
and seek to achieve different ohiectives, there are, in my submission,
other, more basic, flaws in tbis argument.
In the first place, it is not possible to draw a parallel between Article
17 and Article 28 (a).One cannot Say that hecause in practice members
of the Council are drawn from amongst the govemments with the largest
interest in providing international shipping services, therefore the eight
members ofthe MaritimeÇafetyCommittee are to bedrawn from amongst
the largest ship-owning nations. To argue in this way is to disregard in
an impermissible manner the fact that Article 17is closely linked withand developed hy Article 18; and that it is the latter Article which
suggests that Article 17 (a) means six from amongst the govemments of
the nations with the largest interest in providing international shipping
services. There is no parallel provision attached to Article 28. However,
in saying this iny Government should not be taken as admitting that
Article 17 (a) in fact grants the measure of choice read iiito it in the
French argument.
Secondly, the travaux préparatoires reveal another difference between
Articles 17 and 28 (a)ahich excludes the possibility of drawing a parallel
between them. It is quite clearly stated in the report by the Drafting
Committee that the criteria laid domn in what eventuallv becamc Article
17were not intended to he dctermined on a rigid statisfical basis which,
in any case, woiild have been difficult to determine. This statement can
he found in the United Maritime Consultative Council document 212,
of what became Article 28em(a).iThis suggests very strongly that different
considerations were reearded as a~~hintz to this Article. namelv. con-
si<lcratii,iis tliat the i:Zterisias.a staristical one aiid\i.as bisecl oii
easily ascertâ1ii~hIeinformation ~II(II~CtII ver).fact tl~ail:\rticl2S(<1)
a diffïrcnt \vordinc \<,asiised from :\rticlz17 la, indicatcs that tlic in-
tention was to inporporate a different concépt2nd ifthere really had
heen an intention to allow in relation to Article 28 (a) the element of
discretion for which France now contends, the wording in Article 17 (a)
could perfectly easily have heen used and would have achieved that
result. Closely connected with and arising out of this is a third point
ofcontrat hetweeii Article 17 and Article 28.As already stated, Article17
proceeds on the hasis that, before the Assembly elects the members of
the Council, the Council shall itself establish which Memhers fall into
the groups contemplated in Article 17, paragraphs (a), (6) and (c).
Article z8 does not require the Council to establish a group of "largest
ship-owning nations" from which eight shall be elected. \\'hat is tlie
explanation of this difference?The answer, in my suhmission,is txvofold.
First, "an interest in providing international shipping services" is
something which involves an element of subjective assessment. Asalready
mentioned, it is not a statistical matter. Therefore, it was considered
desirable that the evidence involved should first he sifted hy a body
capable of giving the question the proper consideration. Where, on the
other hand, the question is purely statistical, as in the case of "ship-
oxming nations" in Article 28 (a),there is no need for the Council to
review the matter first. M Govemment has already elahorated this point
in more detail at pages and 63 of its Written Çtatement.
Secondly, it appears from Articles 17 and 18 that the Assembly of
IMCOis to select six out of a group. Article 28 on the other hand does
not provide for the prior classification of the group of "largest ship-
owning nations". This differencemust flowfrom the fact that tlie Article
contemplates a selection of the eight largest ship-ouning nations and
not others.
hlr. President and hlembers of the Court, a second argiimeiit which
the French Government employs to support the contention that a choice
found at page 300f the Written Statement. This is based upon the fact
that Article 28 (6) provides that members of the Maritime Safety
Committee shall be eligible for re-election. From this, the French Govern- ST.+TEJIENT OF hlR.IIOORE (LIBERIA)-26 IV 60
289
ment appears to conclude that because there is a provision permitting
re-election ofa State, therefore there is also a liberty not to re-elect it.
In short, the French Government contends, the paragraph reflects the
fact that there is room for choice of eight from amongst the largest
ship-owning nations.
The defect in this argument is, in my submission, that it assumes what
it sets out to prove. In theory, non re-election is of course possible, but
only if the nation in question has ceased to be one of the eight largest
ship-owning nations. If, however, it has retained its position among the
first eight,hen since the same rules will apply at each election,members
willremain nnder an obligation to re-elect those membersof the Maritime
Safety Committee which retain their position among the eight largest
ship-owningnations.
Indeed, it would seem that Article 28 (b) fulfils a function which is
the reverse of that attributed to it by the French Government. For the
.4rticle, having described the formal process of identifying the eight
largest ship-owning nations as "election", then goes on to provide for
the necessary continuity of the membership of those of the largest ship-
election without limit.tain their size. It does this by permitting re-
ils a third supporting argument the French Witten Statement also
mentions, at page 31, considerations of international practice. Reference
iç made to the Advisory Opinion of the Permanent Court on the Nomi-
nation of the Netherlands Workers' Delegateand to the practice of the
ICAO. The precise way in which the French Govemment employs these
references is not quite clear to my Govemment, but we believe that the
reference to the Advisory Opinion may be intended to support the
contention that not the eight largest, but eight among the largest,
is the correct way in which to read the expression now under consider-
ation.
The French Statement relies upon that part of the Opinion in which
the Court held that the obligation of the Netherlands Government to
choose delegates in agreement with the industrial organizations which
are most representative of the employers did not involve an obligation
to reach an agreement with al1the most representative organizations.
That may be a correct statement of the decision of the Court, but my
Government remains at a lossto understand hou, that decision isrelevant
in the present case. Clearly, it cannot be of any help in interpreting the
effect of the words in Article 28 (a) of the IMCO Convention, for the
words and the ideas in the two instrnments are quite different. An
obligation to consult the most representative organizations is not the
same thing as an obligation to elect the eight largest ship-owning nations.
It is not merely that different considerations affect the interpretation of
an obligation to consult and of an obligation to elect. It is also thatan
obligation to elect the eight largest ship-owning nations is a much more
specific obligation than one to consult the most representative organ-
izations.
Mr. President and Members of the Court, having concluded my argu-
ment that the words "from amongst" must not be read into the phrase
"of which not less than eight shall be the largest ship-owning nations",
1 pass to the fourth class of argument which has been employed by a
number of States in favour of the view that the Members of IMCO
possessa wide discretion in the election oftheMaritimeSafety Committee2g0 STATEHEST OF MR. MOORE (LIBERIA)-26 IV 60
Although differeiitly presented by various States, the common element
in each argument is the reliance placed upon the alleged vagueness and
geiierality of the expression "the largest ship-owiiing nations".
The Written Statement of the kench Government appears to be
suggesting. at page 27, that such a vague expression is comparable to
the other notions mentioiied in Article 28 (a), such as an important iriter-
est in maritime safety, an interest in the supply of services. an interest
in the suuulv of creivs, etc. Ttie araimeiit seems to be that. since there

are satisficd, so the same discretion attaches tothe determination of theteria

existence of the former.
:\ iitgt~lisîiiiiilxRr~lLIIIZlltal>p~::irîin the \Vrittcii Stnr~~~ii~~oifitthe
Ciiitc<l liiiigdom, at 1,a~t: 23q 'i'hcreit I> ~~iiiti:~~.lcii para:rilpIij 37
aiid 73 tti:it;iîLIILw.ur~ish:ivc 110auD:ireiircI~:ir-c~iot rICC~III~C:~inrniiiric.
the rntention was "to eiiable the .&embly in the process of election to
look at the realities of the situation and to determine according to its
owii judginent. whether or not candidates for election to the Maritime
Safety Cornmittee could properly be regarded as the largest ship-owning
nations in a real and substantial sense".
These two approaches prompt the follo\i,ing observations by \va- of
reply.
First, it is iiot correct to group together as being identical in kiiid
C'o basically different tenns. "An interest iii maritime safety" and
.:size as a shiv-onnine nation" are intrinsicallv different concents. An
iiitt,ri:st" is i;ilirrriiti~ iiicapabof: prerisc orol>lectivc.nicasii;t:nieiit.
Si/.e,on tlie other liaiid. is capable of surh nieasiireiiieiir. As the Guvcrii-
iiient of I.il>erialias been at nains IO sho\i.in its \Vritten Stateiiieiit. the
expression "the largest ship-o~vningnations" is iiot an impreciseexpres-
sion. The size of a ship-oxning nation can be measured readily, accu-
ratelv and obiectivelv b, su.h tests as the reeistratuon of shi~s or the
nationality of owners.
Secondly, the suggestion that the parties iiitended to use the ~vords
"the largest ship-owning nations" to import an element of discretion in
their selection, amounts again to a straining of laiiguage. If the drafts-
men of the Conventioii had iiitended the Members to retain the kind of
discretion for \vhich the opponents of Liberia's position nonr contend,
they could readily have achieved that situation by the ilse of extremely
simple and non-technical language. If they had merely intended Article
28 .n, to contai11a e<.de or a directive for the election of Jlembers. thev
OLII II I I fit lac not Iiai.c ~lr;iivn :i <liitiiictiori l>t:tiiec;tI&
',i.igtit":iii<.'six" 'l'h~')i>~iI<sinipl). Iiavc said ttiiit rlic31;~riiiiS,afety
Coinniittec sliall coiisist of fourti:eii iiieriil>erselecteil In. thc .Ajsciiil>l\*
from those Members liaviiig ail important interest in maritime safety
and haviiig regard to their size, to their interests in the supply of cre\rrs
or the carriage of passengers, aiid to geographical representation. This
would have created the discretion for which those \\.ho maintain that
the election \\.as valid now conteiid.
Alternatively, if it had beeii desired to retain the distinction betir-een
the "eight" and tlie"six" (though forwhatreasonsit is difficult to discern,
having regard to the nidth of the discretion noiv being sought), it \vould
have been possible to say that eight should be selected primarily by
refereiice to size, while the other six should be choseri primarily by
reference to the other factors. STATElIEXT OF )IR. bIOORE (LIBERIA)-26 IV 60 291

Yet language of this kind was not used; and, with respect, 1 submit
that it is not for the Court now to read such language into what is other-
wise a relatively clear text.
Mr. President and Members of the Court, while 1 am dealing with
the general subject of the evidence which the use of the expressioii
"ship-owning nations" provides of the existence of a wide discretionary
power, 1 should perhaps refer to the second instance of international
practice cited in the French Written Statement, at page 31. 1 do so
wfrom the interpretation of Article 28 of the IhICO Convention than ise
the first. The French Government refers to the terms of Article 50 (b)
of the Chicago Convention of December 7, 1944w .hich lays down that
the Assembly of the ICAO shall elect 21 members of the ICAO Council
by giving adequate representation to, among others, States which make
the largest contribution to the provision of facilities for international
civil air navigation.
The French Statement then procceds to suggest that the formula
thus employed, "States which make the largest contribution" is "identi-
cal with that in the second part of Article 28" of the IMCO Convention.
If the suggestion of the French Government is that the phrase "States
which make the largest contribution" is identical with the phrase "of
which not less than eight shall be the largest ship-owning nations",
the two phrases have only to be placed next to each other for their
dissimilarity to become apparent. A "contribution" of this kind is an
imprecise term; whereas "ship-owning", if it has any meaning, must
,'cessarily be an exact term. It is manifest that when such terms as
chief importance" or "largest contribution" are used, the intention is
to create vague criteria. But it does not followthat the mere appearance
of a superlativeadjectivein a phrase necessarily renders the noun which
it qualifies a vague one. The similarity between the ICAO and IMCO
formulae lies only in the word "largest". "Contribution" and "ship-
owning" are nords so different that, in my submission, the analogy
which the French Statement appears to seek to draw between them is
both unsound and misleading.
measure of discretion in electing "the eight" appears at page 237 of the
Written Statement of the United Kingdom. The contention is that only
hy leaving a measure of judgment to the Assembly of the Organization
would it be possible to avoid the risks attendant on any automatic test.
As to this, 1 suggest first that Article 28 (a) does not contain any
automatic test, but a special automatic test closely connected with
maritime safety; namely, the test of size as a ship-owning nation. If,
as the Government of Liberia contends, the determinant of this size
is the quantity of shipping registered in a State, it is manifest that no
risk isinvolved in electing such a State tothe Xaritime Safety Committee.
If anytbing, the risks flowfrom not electing such a State to the Maritime
Safety Committee.
Closely associ?ted with this contention is another one ivhichbas been
advanced against the Liberian position, namely that the application
of an automatic test would lead to an unreasonable result and that it
would not ensure "that the best qualified Members were choseii for the
Committee". This argument has, 1 regret to Say, heen employed hy the
United Kingdom (at p. 237). France (at pp. 26-28), Italy (p.2~3) and STATEJIEST OF \IR. \IOORE (LIBERIA-26 11'60
292
the Xetherlands (at p. 249). 1 do not think that the reflection, implied
in thisobseripation,on the limitations on the technical capacity of small,
underdeveloped or iieii. States calls for coinments in this forum.
i'et 1 do sav this:If the test for election to the Coinmittee is caoacitv
to contribute'to the promotion of maritime safety, it would be proper
to regard al1these members who were in fact elected to the Committee as
possëssing that capacity to an approximately eqiial extent. On this basis,
1 believe that 1 may say that Liberia and Panama might fairly be
regarded as possessing a similar degree of capacity. They will always
be in a position to ensure appropriate technical representation of a highly
qualified character at the meetings of the Maritime Safety Committee.
This concludes the first part of my consideration of the substantive
poiiits raised in those Written Statements which siipport the validity
of the electioii1 have attenipted to rebut each of the arguments which
have been advanced in favour of the view that hlemberi.of 1XCOenjoyed
a discretion so \vide that tliey could disregard the claim of Liberia, as
one of the eight largestship-owning nations. to election to the Maritime
Safety Coiiimittee. In sodoing, 1have subniitted that the word "elected"
in Article 28 (a) does not create an unfettered discretion; and that the
reference to the criterion of the possessiori of an important interest in
not permissible to construe the phrase "eiglit shall be the largest ship-
owning nations" as if it read: "eight shall be from ainongst the largest
ship-owning iiations". And finally 1 have submitted that the alleged
vagueness of the expression "ship-ojvning nations" does iiot establish
the discretioii \\-hichis sought for. 3. ORAL STATEMENT OF hlr. WEEKS (cont'd).
(REPRESENTIN THE GOVERNMEST OF LIBERIA)

AT THE PUBLIC HEARINGS OF 26 AND 27 APRIL 1960
[Pttblichearing O/ 26 APril rg60, afternoon]

Air. President and AIembersof the Court.

bir. Moore has just addressed himself ta the principal contention of
mv Government: the contention raised hv most of those States which
li;\,e opposed the positioii of the Gu\~ernri&ii<>fI.il>zria;tlie ciiritciitioii
that .\lembersof I>ICO.acii,rtliiig to thc terms of :\rticle ~S(J),pusesjed
a discrction \ii<Ii<?iioiicliio refrain from electiiir! I.ilieria nncl Panani:<
to membership of the karitirne Safety ~ommittëe.
1 shall now tum to the second main part of my Government's State-
ment. In this 1propose to refer relatively briefly to the question of de-
termining the size of a ship-owning nation for the purpose of identifying
"the eight largest ship-owning nations".
1 can sav that 1 will make this reference relativelv bnef because it is
a significai;t featurc of the \\:ritteil Stateiiients whidi rctich ~~oncliisiuns
adverse to tlie iiositiuii of Liheria that none of theni rraII\, attvrn\vitIl
anv rneasure Ôf concentration to rebut the Liberian contention that
re~istrxtiun is.iiithe contexr of Article 7s (~l)<,fflic 1\1(:0 ('o~i\~entioii,
the correct test of size. The einl>li;riiieach r,fthe \\'rirteii Si;~t~~ineiits
just rnentioned is on the assertion of the existence of a discretion so ivide
that it eliminates any need to determine what is meant by the phrase
"a ship-owning nation". We have already taken a great deal of the
Court's time in seekine to rebut that areument. and I donot DroDose.in
the light of the arguhents so far pre&nted, to deal with kkments
that have not been spelled out in any detail. Nevertheless, 1 am bound
to make some submi;ssionson the role and meanine of the-expression
" the largest ship-owning nations".
My first observatioii is that the expression "the largest ship-owning
nations" must have some specificmeaning, just as the whole phrase "of
which not less than eight shallbe the largest ship-owning nations" must
have some meaning. Otherwise, why should the words have been included
in Article 28? If it is said that the words are there merely as a general

guide to Members in the exercise of an unfettered discretion,,then 1
would reply that it is more than a little curious that any distinction was
drawn between "the eight" and "the six". It is, in my submission,
impossible, for reasons already given, ta avoid the conclusion that the
draftsmen inteiided to refer here to an objectively verifiable test-the
test of size.
Wh~~~~.hen~~.s~to~be~the test of size? The Government of Liberia has
coiiteiiil~d tliat the ti.st slioiil<lbe rlii8fr<.;istration. .Alrernativ+ly,
the test skiuul<lIicu\viirrsliiIi\11alio!ia1~\.1\'ii~~vïri~!~it:i'intentlulls
on these points areset out Lndetail at pages;'-45 of the printed volume
of Written Statements, and 1 do not believe that the Court would wish
me to repeat them now.
However, tlie United Kingdom Government, inits Written Statement,
declares at page 239 that "whatever may be the meaning of 'ship-owning
nations' it is clear that they do iiot refer to gross registered to~inage".294 S1':YI'ElIEST OF >IR. \VEEI<S (LIBERIA)-26 1\'60

Yet, beyond suggesting that the vagueness of the words indicates an
intention to create a wide discretion, the United Kiiigdom Government
does not attempt to give them any content whatsoever.
This type of reasoning is, in my submission, unconvincing. Having
regard to the weight of authority produced hy the Government of
Liberia for the contention that registration, as the appropriate connecting
factor in cases of this kirid, is the criterion for testing the size of ship-
omning nations, the United Kingdom can only displace that meaning
by pointing to some clear alternative meaning. This, after all, is what
the United Kingdom has always asserted had to be done by those States
ivhich denied the continuing validity of the three-mile rule in relation
to territorial waters. The suggestion that the words create a discretion
is not the suggestion of a meaning but an assertion that the words have
no meaning. This, in my suhmission, is inconsistent \rith the view pre-
viously expressed hy the United Kingdom in relation to the problem of
the creation and modification of rules of international law; and it does
nothing to weaken the position of the Government of Liberia that regis-
tralini'ty11~rl1a1.,<l<llwrt,,IIIpx~siii~,~hat iffurthci t~i~lcncc i;r~.]iiirt.cl
uf tlie ai.ri,l>tnric?I>\.Statcsof rcgisrratiaii~~r~ctic;illtylic roiily;i(leqiiatt:
test ior coiiiit~ctiiiga slii])tu a Statc, rcfcreiicc iiiay 111riindc ro rwo
receiit clas;es uf convcnti~ii In the tirst plact. thcrt, arc thc Cunjiilar
Cuiivriiti~~,iis\<hich thr (Jiiited I<ingdom has r~c~ntly coii~~liiili~\(rlith
France ancl rhe Federal l'<ei,tiblicof (;cni~aiiv. I?ir the i>iirriosc.;of tlie
parts of the Conventions cônnected with théexercise oc consular juris-
diction over ships, a vesse1is defined in those Conventions as "any ship
or craft registered under the law of any of the territories of that party".
Again, in a recent exchange of notes between the United Kingdom and
Denmark concerning the regulation of fisheries around the Faroe Islands,
the vessels to which the agreement is made applicableare those registered
in the United Kingdom, the Faroe Islands and Denniark.
Admittedly, those are cases where the concept of registration was
expressly invoked. Nevertheless, they are of significaiice as confirming
that in the law of the sea registration is the most frequently employed
connecting factor.
-4second observation which may be made in connection with the
interpretation of "ship-owning nations" arises out of references in the
Ll'ritten Statements of France and the United Kingdom to the character
of Lloyd's RegisterofShififiing Statistical Tables, from which the various
tonnage figures are drawn. The French Govemment contends at page 29
that thesestatisticscannot be made the only source for the appointment
of officialsin an international agency. The French Statement continues:

"Need it be added that those statistics cannot be invoked against
States as legal documents, which indeed they have never claimed
to be. A compilation of figures of which the publishers neither c+ck
nor guarantee the accuracy furnishes useful economic information,
but has no probative value."

With due respect to the French contention, it does not appear to he
to the point. Liberia's position is that Lloyd's Register of Shipping is
simply a convenient source to which to turn for information-a source
which is as reliable as any which exists in this field: which is generally STATEhlEXT OF \IR. IVEEKS (LIBERIA)-27 IV 60 295

respected; and which, it may be addecl, was employed without demur in
theThe point to which the French argument fails to give due consideratioil
is that it is not the figures in Lloyd's Kegister which determine which
are the eight largest ship-owning nations, but the objective facts which
lie behind those figures and of which the Tables merely provide COIL-
venient evidence. It would no doubt have been possible for the Secrô-
tariat of IMCO to have asked each Member to certify its tonnage figures
prior to the opening of the first Assembly-a process which would have
produced figuresto which the objections ofthe French Governmeiit would
not apply: But these figures are unlikely to have differed in any material
respect from those in Lloyd's Tables. The Secretariat, quite rightly.
therefore, in the opinion of my Government, appears to have taken the
view that nothing would be gained by pursuing that course; and in
consequence of this co~iclusionthe Secretariat circulated \Vorking Paper
Xo. 5, containing a list of registered tonnages, \\,hich was treated by the
.4ssembly as the basis for the election.
The point raised by the United Kingdom, at pages 235-236 of their
Written Statement, is slightly different.
The United Kingdom observes that the statistics recorded in Lloyd's
Kegister relate exclusively to the fact of registration and do not attempt
to reflect what are said to be the realities of ownership behind the regis-
tration.
The Government of Liberia, of course, does not deny this statement.
The Lloyd's Tables relate only to registration. That is a fact. But then,
it is only on the basis of registration that Lloyd's Tables are invoked.
The so-called realities of ownership behind registration are, for present
purposes, quite irrelevant.

[Public hearing of 27 April 1960, morning]

Xr. President and Members of the Court, by way of a third obser-
vation, 1shouldmention that the viewsexpressed by the United Kingdom
on the risks inherent in the use of statistical tests may be of some
relevance in the present context. However, MI. Moore has already re-
ferred to them and, with the leave of the Court, 1 will not repeat the
reasons for regarding that argument as unconvincing.
My fourth observation on the meaning and effect of the expression
ance of %regist;ation"ne&nathe relevant test. My Government has alreiddy-
submitted, in its Written Statement, that once an objective test such as
reeistration or nationalitv of owners is accented determinine size
LS-a sliili-u\ining iinti~ii.tlicii rliii rhc only test tlinr cihrripplicd.
II is noi pujîibli:to go Iiehind rrgistrnlioii ur u\riicrsl~by n:ttiunrils
\vit11a\.ir\i, ta nssc5sinc.irhnt tlic I,t>.iiiclirc~istmrinii or o\\.iierstiio
may be, or with a vieGto ascertaining whether the State of registratiok
is interested in maritime safety or is in a position to make an original
technical contribution to the promotion of maritime safety through
its own nationals. If one goes behind the fact of registration, one is in
effect rejecting the test of registration and substituting for it whatever
may be the criterion one thereby seeks when one goes behind the fact
of registration. For the essence of a criterion is that it should be the296 STATEMEKT OF hlR. WEEICS (LIBERIA)-27 IV 60

not merely the bais on whichor inatfurther factor 1ssuperimposed.ated and
In particular, there is no warrant for going behind the fact of regis-
tration to determine whether the shipping registered in a State in fact
has what has been called a "genuine linli" with it.
My Government did not refer to this matter in its Written Statement,
because the manner in which the concept might be deemed to be applic-
able in the preseut situation had never been clearly sFated. In any
event, it is not, in my Government's view, a relevant consideration. But
1 refer to it now because four out of the five adverse Written Statements
hint at its relevance and one expressly adverts to it. In addition, the
Written Statement of the Swiss Government specificallv draws the
attention of the Court to it.
It is a submission of my Government that the concept of "the genuiiie
link" hasnothine to do with the present situation whatsoever. The Court
is here confrontid with the prpblem of interpreting an expression in a
treaty, namely, the phrase "ship-owming nations". The concept of "the
genuine link" is therefore not relevant here. If it were, it would be rele-
vaut in every treaty where any formula is employed for connecting an
individual, a corporation or a ship with a State. There would be no
treatv in which a reference to "reeistration" could be constmed other
tkiaii':rja rvlcrciicc tu regisrr~1ior;~rovi~ed ttiat there exisi.gcnuiiic.
Iiiik".:\nd, in ttic light of clicui!c<:rtsintics\\hich att10ltlie iiieaiiirig
uf "tlie~~iiiiiiiclink". iis nianifcjt tliat tlrc rc,l:itivcclarity \rhicli nuw
attachecto-and is intended to attach to-such concepts ai registration
would be obscured or would be destroyed.
Indeed, 1 should emphasize in this connection that the IMCO Con-
vention was originally drafted in 1946, at a time when the expression
"the genuine link" was still a matter for the future and when the concept
to which it relates was still relatively unformed. As rny Government has
already snbrnitted, at page 59 of the Wntten Statement, a treaty must
be construed in the light of the law existing at the time it was concluded.
It is noteworthy in this connection that in the Flegenheimercase, in
1958,the United States-Italian Conciliation Commission appears to have
declined to deny effect to the United States nationality of the claimant
on the particular ground of 1.k of effective nationality, though it did
reject on other grounds the claimant's assertion of United States citizen-
ship. The significance of that decision lies in the apparent recognition
that the connecting factor stipulated in the treaty shonld not he read
as subject to an implied condition relating to the "genuine link".
Despite the basic irrelevance of any discussion of the "genuine link" in
the present context, the fact remains that some States have referred
ment desired briefly to draw attention to certain doubts about then-
concept which operate, in my submission, to exclude its application in
the present context. These uncertaintiesrelate to the status, the content
and the effect of the doctrine, "genuine link. 1 will refer to each of
these points in turn.
First, as to the status of the concept of the "genuine link", it should
be noted that, in relation to shipping, it has received international
recognition only in the Convention on the High Seas adopted at Geneva
in April 1958. But this Convention has not yet entered into force and
is, therefore,in its precise terms uot actually binding on the signatories. ST.4TE.MENT OF $IR. WEEKS (LIBERIA)-27 IV 60 297

Moreover, it is douhtful whether any form of the concept capable of
avvlicatioii in maritime matters can be said to be vart of customarv
ii;ernational law.
However. if we may assume for a moment, without admitting, the
existence of a concept of the "genuine link" in the terms of paragraph I
arises, does that concept have any content relevant in the presentn then
circumstances?
There are, in the suhmission of my Government, two things which are
now clear about the concept of the "cenuine link" as written into
Article 5 of the High Seas Convention.
The first is that it is not intended to refer to the concept of "heneficial
ownership". That is to Say, there is no requirement that for a genuine
lirik to esist there miist be heneficial ownership of a vesse1vested in
nationals of the State concerned. No such mle found its place in the
detailed enumeration of factors prepared hy ,the International Law
Commission prior to Igjj; and when the detailed enumeration \vas re-
placed in 1956 by a general reference to "genuine link", it \\.as not in-
tended that the general expression should give rise to a stricter rule of
law than was contemplated in the particular enumeration. Aforeover,
specific attempts at the Geneva Conference in 1gj8 to re-introduce a
reference to "heneficial interest" were not successful. Indeed, it ~vould
hardly seem to he in accord with the interests of certain traditional ship-
owning States, such asthe United Kingdom, and possiblyeven the Nether-
lands, that such concepts should be employed.
If. then, the concept of the "genuine link" does not cover the re-
quirement of ownership by nationals, it follows that it wouldnot cover
such lesser matters as the nationality of the directors or the seat of the
company's business.
The second point of importance about the "genuine link" concept as
included in the High Seas Convention is that not only does it not refer
to heneficial ownership, it probably does not refer at aüto theconditions
.which should exist prior to registration. The particulars given of the
concept, namely, the effective exercise by the flag State of jurisdiction
and control in administrative, technical and social matters, indicate that
the concept was in its final form intended to relate not to events hefore
registration, but to events after registration. It became, in effect, an
exhortation to States to do something vis-à-vis sbips under their Aag.
And this view of the matter is borne out by the fact that the Geneva
Conference eliminated altogether the phrase "for the purpose of re-
cognition", which had originally preceded the statement of the "geniiine
link" rule. In short..avA.eciatine the fact that the conceot as finallv
defincd did not lay down condit?ionsfor.registration, stat'es withdrek
orecedent to re~istration had not been fullv saiiified.if the conditions
Closely connected with this point is aiother difficulty affecting the
application of the concept of the "genuine link. At what moment is it
to be ar~vliedto anv vaiticular vesiel? If the ~enuine link exists at the
lime of rcgistralioii,1~111cc:ises rlii.rcaflili~vathe rrgi,lritl,~il h~:c~lllle
iii\~aIicl?Oriftticre!YU no gt:iiiiiii~Iii:tttlic tinioi rr~~~tiatioii,but
one caiiic into esistçiicc ;ifrcri\.ardsIS rlic rcgiitratiuii rcrrojpecii\~t~ly
i.;il~dated?Quesrions susli as tlicic. czïm~~lifyth.. iiii\.rrt:ilnty \\hich is
introduccd in11 ait area whcre ilie iieed for crrtainry is csjciitial. Si~t298 STATEXENT OF JIR. WEEKS (LIBERIA)-27 IV 60

only must ships not have tmo nationalities. It is essential that the one
nationality which they have should be readily, rapidly and confidently
ascertainable.
This conclusion anticipates my final short observation on the"genuine
link" doctrine. As a result of the withdrawal of the words "for the
teeth as the concept already possessed were drawn. It became clear
that non-application of the doctrine could have no direct consequences.
In particular, it was clear that States were not prepared to vest in each
other a right unilaterally to determine whether or not to recognize a
genuine link hetween a ship and a State. The concept was thus reduced
to a statement of principle. It is therefore doubtful whether it can play
a part in the customary international law of the sea; and it is, in my
submission. more than clear that it has no uart to ulav in the present
proceedings. . -
Finally, before leaving the subject of the "genuine link completely
there are two further observations which 1 feel bound to make in con-
nection with it.
The first relates to the use which the Government of the Netherlands
makes of the concept of the "geniiine link" at pages 251 and zjzof the
Written Statements. The Government of the Netherlands appears to
contend that for the purpose of determining whether registered tonnage
should be taken into consideration in determining size as a ship-owning
nation, there must exist a genuine link between the ship and the State.
The Government of the Netherlands then refers to the laws of Liberia
and Panama for the purpose of determining whether certain factors of
conn~ ~ ~ ~such as incor~oration of a comuanv or the nationalitv of
tlic inai~qrm~nt-arc condirions reqiiircd foi rliir~qiirration ofa v;ssel
in 1.ihcria or iiiPananiri, Tlicii, stnrtngth:^^tlizsi: ri:<luireinciitsart; iiot
nrcsrnt in 1.itit.riaur Paii;iiii;,iiila\\.the (;o\.crnincnt of thc 'Jerher-
îandsconcludes that there cannot he a kennine link between Liberia and
Panama and any ship registered with them.
1 will assume that the position in Liberian and Panamanian law is as
the Government of the Netherlands says it is. Though 1 may add in
passing that the difference between the laws of Liberia andPanama and
the laws of many other States in this respect is not one of kind but
merely one ofdegree, and is not a very great difference at that. Neverthe-
less, on the assumption made by the Netherlands, 1 must submit most
strongly that that does not automatically lead to the conclusion that
the requirement of the "genuine link" is ~iotsatisfied. The point about
the concept of the "genuine link" is that it is concerned with the re-
lationship between a particular ship and a particular State. Todetermine
whether the link exists one .must look at the facts relevant to that
particular ship. 1 assume for purposes of argument that ownership by
nationals is, in terms of international law, the criterion for the existence
of a genuine link. In that case the fact thatthe law of the State concerned
does not require ownership prior to registration will not negative the
existence of the genuine link if, in the case of the particular ship con-
cemIn other words, if it is said that the registered tonnage of a State is
not genuinely linked with that State,this contention must be established
not by general reference to the laws of that State but hy reference to
the position of the individual ships constituting that State's tonnage. STATEMEST OF hlR. WEEKS (LIBERIA)-27 IV 60 299

This defect in the approach of the Written Statements of the Nether-
lands Govemment would invalidate the conclusions reached by that
Government even if the concept of the "genuine link in relation to
shins reallv enioved an effective lace in international law. However. in
the'view of m$ Govemment, thepe are such douhtsabout thestatus,the
content and the effect of the doctrine in relation to ShiDSthat it reallv
cannot he applied, certainly iiot in the present conte& and probabl$
not at all.
My second and concluding observation on the "genuine link" is this.
If one takes the literal words ofArticle 5(1)of the High Seas Convention,
- there can be no reasonable doubt that Liberia satisfies the requirements
of the "genuine link". As Appendix III of our Written Statement shows,
Liberia does exercise a real and effective jurisdiction and control in
administrative, technical and social matters affecting her ships.
Mr. President and Members of the Court, 1 have now concluded my
Govemment's Oral Statement on what 1 may call the substantive
issues in the case. There remains, however, one point to which 1should
Wtitten Statements of both the United Kindom and Italy (at pp. 240, in the
and 225 respectively) a reference to Article 55of the IMCO Convention.

interpretation or application of the Convention shall be referred for
settlement to the Assembly, or shall be settledin such other manner as
the.parties to the dispute agree". Both the United Kingdom and Italy
suggest that the effect of this provision is to endow with some special
significance the majority vote of the Assembly excluding Liberia and
Panama from the Maritime Safety Committee.
Now the Government of Liberia does not deny that the practice of an
organization can be an important element in determining whether any
particular act is lawful or not. But the practice upon which reliance is
placed in such cases is always practice prior to the date of the contested
event. If a concept familiar in disputes relating to territory may be
introduced here, authontative practice occurs pnor to "the critical
date". In the nresent instance. it would be a comnlete travestv of the
di,ctriiie ro iiigg~~rrlixr \\-livretlic It.g;tif;IIirocvsi i.;clinllt~iigat
cvc~ srrtgc ofili clt-vclol>nit.n,rv~:rttielisrlivv<%rp \.ro:ess cli~llt:nqcd
sIiuiilbe addiiccd as ;ircIcv.int consider;itiuiiidctcriniiiinir irslccnlitv.
Even in the moderate terms in which the proposition içput Tn tthe
United Kingdom's Statement,it is, in my ~bmission, a quite unsustain-
able argument. The United Kingdom suggests that due weightshould
be given to the vote in the Assembly. In my submission, due weight in
this instance is no weight.
The fact that the Written Statement of the Italian Government de-
scribes the decisiou of the Assembly as being taken by a large majority
simply serves to weaken an already weak argument by founding it upon
an inaccuracy. In truth, the vote upon Liberia was: II in favour, 14
arainst. and 7 abstentions. Perha~s we mieht "av that it is a small
exagge;ation & call that a large kajority.
Indeed, an argument of the kind advanced by Italy and the United
Kinedom does not eive,,roD.rweie.t to the terms of Article 56. This
pru\,irlcrli:it ':\ny 1cg:ilrliir.riun\~liiil<.:iiiri1,~~cttl~~.a$ l)ruvi<leil
in Ariicle 55 sIia111>trcf~rrcd hv tlie Org,ini/;irioii ru th< Interiiatiun:il
Court of Justice for an advisori opinionin accordance with Article 96of the Charter of the United Xations." What would be the point of this
provision if the verydecisionof the Assembly which was being challenged
was deemed to bind the Court?
And if the point called for further discussion, it isclearly most strongly
arguable that the Assembly, in deciding to ask the Court for an Advisory
Opinion, %vas by implication saying: "We are in doubtabout the validity
of Our owii action. Please decide the matter by reference to the law of
the Organization."
In brief, 1submit that the election of the Assembly cannot be regarded
as a la~v-creatingfact in the present situation.
1 also siibmit, in passing, that there is equally no warrant for the
suggestion, which the United Kingdom makes in this connection, that
there is a "presumption in favour of the interpretation on which the
Assembly has based its decision". Suc11a presumption might have existed
if there had beeii some pre-existing consistent trend of practice. But in
the absence of precedents, there is no basis for a presumption one way
or the other. It would, my Government believes, be unfortunate if a
case in which the issues are so clear should be made to tum upon pre-
sumptions.
Mr. President and Members of the Court, 1 have now reached the end
of my Govemment's Statement. We regret that it has been so long. But
1can genuinely Saythat we have endeavoured to restrict it to the points
raised in the Written Statements of other participants. With your leave,
therefore, 1will now present the formal submissions of my Govemment
on the points wliich arise in this case.
In the submission of the Govemment of Liberia, the question whether
the Maritime Safety Committeeelected on January 15, 1959 isconstituted
in accordance with the Convention forthe Establishment of the Organ-
ization should be answered in the negative for the following reasons:
I. By its terms, Article 28 (a) of the Convention imposes upon the
Assembly of IMCO an obligation to elect a Maritime Safety Committee
of whose members "not less than eight shall be the largest ship-owning
nations".
2. This is an obligation to elect at least those eight members which
are objectively to be regarded as the eight largest ship-owning nations.

3. There is nothing in Article 28 (a) whicli weakens the absolute char-
acter of this obligation or confers on members a discretion entitling them
to disregard the objective requirements ofsize.In particular, the useofthe
nor can the obligation to elect not less than the eight largest ship-owning
nations be read as providing for the election of eight from amongst the
largest ship-owning nations.

4. The reference tothe possessionof "an important interest in maritime
safety" does not affectthe obligation to elect the eight largest ship-
owning nations. The particular requirements connected with size,are not
modified by the general consideration relating to interest in maritime
sense, the largest ship-owning nations must be regarded as possessingn
an important interest in maritime safety.

5. The factor which determines the size of a ship-owning nation is that
of registration. This is the connection most commonly employed for STATEILEST OF .\IR.WEEKS (LIBER]:\)-27 IV 60 301

attributing a vessel to a State. It is simple and it is certain. 31oreover,
in the present instance, since it is only the State of registration which
can apply its law to a vessel, it would be in conformity with the objects
of the Convention and in particular with Article 26(a) to adhere to that
test. Further, itis a test which has been employed for other purposes in
relation ta IhlCO, including the assessment of contributions.
G. If registration is not regarded as the appropriate test for determin-
ing the size of a ship-owning nation, then nationality of the owner of
a vessel must be so regarded.
7. Whichevcr tcst is accepted as applicable, it is the only tcst which
can he applied. 'l'opermit the addition toit of other critcria is, in effect,
to siibstitute the additional criteria for the original test. Any such
substitiition would amount to a revision of the Convention. The test is
intended ta he objective, and should not be replaced by discretionary
elements.
S. In particular, the concept of the genuine linkisinapplicable in the
present context.
g. At al1 material times, judged either by the test of registration or
by the test of the nationality of owners. Liberia was among the eight
largest ship-owning nations. Consequently, Liberia should have been
elected to the Maritime Safety Committee on ~j January 1959 .s she
was not so elected, the Maritime Safety Committee has not been properly
coiistituted.
IO. Alternatively, the Maritime Safety Committee was not. properly
constituted by reason of certain fundamental defects of procedure and
of a détournement de pouvoio rccurring in connection with the election:

For these ten reasons, it is submitted that the answer to be given by
the Court to the question put to it should be in the negative.
Finally, 1am, in this connection, instructed to reaffirm the declaration
made hy my Govemment at the close of its Written Statement. The
declaration follows: If the Court decides that the Maritime Safety Com-
if, in dile course, Liberia is enabled to take her rightful place on the
Committee, my Govemment will raise no question as to the validity of
the work on maritime safety done within IRICOdu~ingthe period prior
to the date on which Liberia becomes a member of the Maritime Safety
Committee.
Ur. President and Members of the Court, 1 thank you for the consider-
ation and patience with which you have heard this Oral Statement. 4. ORAL STATEMENT OF Dr. FABREGA

(REPRESENTING THE GOVERNMENT OF PANAMA)
AT THE PUBLIC HEARIXGS OF 27 APRIL tg60
[Public hearingof 27 Apil1960, mwning]

Mr. President and Members of the Court.

May 1 begin by presenting, most respectfully, the greetings of the
Govemment of the Republic of Panama and by declaring, personally,
that 1 consider it a great honour and a privilege to appear before this
high honourable Court.
Mr. President, 1 shall speak extemporaiieously and 1 shall try to be
very considerate of the time and the patience of this high Court, and
consequently 1shall try not to repeat any of the groiind that has been
so admirably covered by my distinguished colleagues the Representatives
Republic of Panama in its \t7ritten Statement. and therefore, if 1 may
describe what is going to be the course of my presentation, 1 wiUSay
that it will be more a matter of emphasis, of stress upon certain aspects
of the case, rather than repetition of those aspects. And 1 may Say that
1 am greatly aided in limiting my work in that fashion because the
general ground of this debate has been very admirably and very fully
and very thoroughly covered by my predecessors, the Representatives
of Liberia.
We think, Mr. President and Members of this Court, that if we take
an integral view of this whole problem, this whole debate, we find that
very seldom has there been presented before any Court a question which
isso sim~le: 1refer to the anestion itself: the ~roblem involved can be
described as of very little Complexity, as a vêrysimple, very narrow
problem, and although al1 of the Parties in this debate have been ex-
tensive in the presentation of their arguments, that is because we al1
have gone into quite a number of subordinate or subsidiary questions.
But the cardinal question, the basic question in this debate, 1think 1
shall be able to demonstrate, is a very simple and a very narrow one.
This Court bas been asked to declare whether the election of the Mari-
time Safety Committee was made in accordance witli Article 28(a) of
the Convention creating IMCO. That is al1we have for decision. On one
hand, the action of the Assembly, in electing the Members of IMCO,
that is, the way they were elected, and, on the other hand, the language
of Article 28, paragraph(a),which says how the election bas to be made.
That is all. Ail the other questions about the "genuine link, about
what should be the best way of defining or descnbing a ship-owning
nation. and many other questions. interesting as they may be, are really
irrelevant to this debate. And 1 Say they are irrelevant and 1 shall go
into that more fully further on, because the Assembly had already
accepted the criterion of ship-owningOII the basis of tonnage registered
under the flag, and it had accepted Lloyù's as the aüthoritative list for
the listing-if 1may repeat4f nations, in the order of tonnage registered
linder their flag. So, it is beside the question to argue now whether STATEMEXT OF DR. FABREG APATA~~A)-~~ IV 60 303

ship-owning should have been determined on any other basis. That is
the basis that the Assembly itself accepted. It acted on that basis, but
when having chosen that standard, the Assembly refused to follow the
proper order of ship-owning in the very list which it had chosen as its
guide. Therefore the question is whether they were entitled to act in
that way or whether they were arbitrary, discriminatory and acted in
disIn our Written Statement we go into a great deal of detail in giving
the factual situation. \Ve describe how the very nations, the speaker
for the very nation that led the dehate-led the action against Liberia
and Panama-submitted a proposition to the effect that the election
should proceed on the basis of Lloyd's listing of tonnage under the
various flags. That was the proposition of the United Kingdom that
was accented as the basis for the election.
Now, îet us analyse that, Mr. President and Members of this Court.
M'hat does that action mean at that very stage? 1 am going to read four
or five lines, the pertinent lines of the Convention:

"The Maritime Safety Committee shall consist of fourteen Mem-
bers elected by the Assembly from Members, Govemments of those
nations having an important interest in maritime safety, of which
not less than eight shall be the largest ship-owning nations."

1 am going to stop right there; to make the matter more simple 1
am not going to consider now the remainder of the article which deals
with the election of the other six Members: just the election of the eight
"Members, govemments of those nations having an important interest
in maritime safety of which not less than eight shall be the largest ship-
owning nations". We Say, and 1 think anyone would Say, as a natural
reaction, as a logical proposition, that a body which is faced with a
provision stating that it must elect the eight largest ship-owning nations,
the first thing that that body woiild feel that it had to do was to define
what "ship-owning nations" meant. What is the meaning of "a ship-
owning nation"? And we submit that only two possible meanings could
occur to the Assemblv of IMCO, or to anv other bodv under similar
circiiiiistniicéi; tliat "iliila-o\viiirigiiationj"'eitIicr iiieaiit nations \i.liich
wcrc tlie i,\viit-rsof\~csscls,i\i.tiichtlic (;oreriimt.iit of rhow nations
were the owner of the vessels, or nations which had tonnage registered
under the flag although necessarily the owners of those vessels were not
the nations themselves. Those were the only two conceivahle, possible
meanings of the expression. They had to choose between the two; that
was the first step in the process, and of course itis-obvious that they
to nations that owned the ships. Why? Because that is not customary,g
that is not the practice in the maritime field. Nations are not the owners
of vessels, except ships of war or private vessels in a very limited way.
But the reality of the maritime phenomena is tliat merchant fleets are
owned privately by individuals, they are registered under various flags,
and therefore the expression- "ship-owning nations" referred not to
ownershi ip the civil sense of the nation having title to the vessel,
fee simple over the vessel, but ofowning in the political sense, namely,
that the-vesse1 was under the flag of that nation and that nation had
jurisdiction over it and its laws were applicable and goveming on those STATEliEST OF DR. FABREG (AASA\IA)-27 IV 60
304
ships. That was the natural, the logical interpretation, and that is the
interpretation which the Assembly took in fact, when it said: "Let lis
make the election on the basis of Lloyd's List." \flhy? Because Lloyd's
List lwhich is in eridence. and has been'siibmitted by the various
~u\~e;iimciit~) IIIsu inany \vordssiLites:"Salions tu \ihichships bclong"
-rliosc \i.ordsnrc iisc<lin the lieatliiigsof I.loi.d'sli-10 Itst rli~.i,:irioiis
nations according to the tonnagere6stered uiider their flag, and not in
accordance with private ownership or any other criterion. So right then
and there, Mr. President and Members of this Court, the Assembly of
IMCOchose as the criterion of "shil>-owning",and as the guide to apply
such criterion, and make thc election, the list issued by Lloyd's. 13ut,
in making the election, tliey chose to disregard the order in the Listof
Lloyd's, and instead of electing the first eight-or, to iise the words
of the Convention, "the eight largest shi]>-owning nationsu-tliey
simply went over two of those >lembers, namely, Liberia and Panama;
and they chose the ninth and the tenth ship-owning nations in the place
corresponding to Panama and Liberia. who urere among the eight ship-
ouning nations.
So, as Panama sees thisdebate,the wholequestion, the entire problem,
narrows dom even more than the way in which it has been officially
presented to the Court. It really narrows. in final analysis, to one qnes-
tion: \i7hen the Assembly chose to disregard those twonations,although
it had accepted the criterion of "shipowning" and although it had
accepted the list that should serve as a basis for the election, when the
Assembly, 1 repeat, disregarded the order in that list, was theAssembly
entitled to do that? Did thev have the rirrht to do that? Or mere thev
&npelled. by the conventio;, to make the election iii that ;rd&? ~hit
is the entire auestion before the Court: thnt is the root of the urobiem

and al1 other ;ssues. we respectfully submit, are subsidiary, are sub-
ordinate, and 1 think it woiild help the analysis considerably if we
maintain full attention to the fact tliat that is the centre of the contro-
versy, the crucial, the decisive issue.
Mr. President and hlembers of this Court, 1 say once more that
the entire question is whether the Assembly had the right not to elect
those eight nations that were first in the list. We contend that the
Assembly was obligated, was bound to elect those eight. The Govem-
ments that take a different position contend that it was not. \Ve proceed
to demonstrate why, in our opinion, it was an obligation on the part of
the Assembly of IMCOto elect Paiiama and Liberia, as among the eight,
and why in not doing so the Assembly of I3ICO violated the IblCO
Convention as well as ivell-knoun principles of international law. The
first reason why the Assembly of LllCO \\.a in our opinion bound to
make that election of the first eight Springs from the letter of the Con-
vention, because the applicable words of the Convention used clear and
mandatory language in that regard, of which 'hot less than eight shall
be the largest ship-owning nations". Those are not urords of discretion,
those are not words of flexibilitv, of dele~ation of uower to follow one
coiirsct~r rti~otlirr; t1i:tij clAr and nGiidati>r\. i:ingungr .'iiot les
tlian t.iglit sl.all I>erhr larfrcstship-o\iiiing ndrioiis"-it 15inil>osiihlr
to recoiicilr tlie acrioiof 11icAi;scrnhl!. ivith tlini I.ingii:igc. \\'e iiiny
repv;ir icir<la!. niid cI:iysivor<ls;incl phr.îsin tlicsr 11i.arii.gsi.1ii;iy
it:ire111III*.notions \vc <:;intliink of; and \ve niny exti;iiijr ;il1the legal
liter;itiirv oii tl.ij ~liicsrioii.aiiJ still ive could not find iiirlicient I~asiito ST.ATEJIEST OF DR. FABREG APAS:\JI:I)-~~ IV 60 305

depart fromthis clear and mandatory langiiage that "not less than eight
shall be the largest ship-ojming nations". So lfr. President. if we are
to follow universal rules of treaty construction, which have been laid
down by the decisions of this very high and honourable Court, we find
that the first rule-and there are many decisions to that effect, and 1
may, as one of them, refer to the case of the Polish postal service in
Danzig which is quotcd in our Written Statement-the first rule, I
repeat, is that words in a treaty must be given their usual and natural
meaning. So, the obvious, the usual, the natural meaning of "shall be
the eight largest ship-owning nations" is esactly that; that they shall
be those eight largest ship-ouning nations. And it is very, very difficiilt
to accept how it can be argued, as it has been argued by one of the
Govemments taking a different position from ours, that that langiiage
may mean "eight from among the largest ship-owning nationsu-that
is not the natural, the usual meaning of the words. So, 1 repeat, the
first armment cornes from the verv laneiiae,,of,,he Convention.
I tli&k iv<:iiixy iiiiniii..riïc tlic liujitiuiilir(;o~~criiiii<.iii.liicli
:ircsul.~~orillltlii. \~:liifiiryof rhc eit-ctiorib) Sayiii;lliirt:irgiimtnts
fur iu~itciidiiiitl~;itlii:Asi~~nil,Ii:idtliiriclir or rlie iio\vi.rtii riiakt:tlic
électionthat did are derived irom two Gascns. 0;e, which is really
centred upon the meaning of the word "electn-we may cal1 that the
argument of "discretionw-that is, that the Convention used the word
"elect" to mean that the electors had the power to choose,hadthe power
of discretion and therefore it was not mandatory for them to inake the
election in the order in which the eight nations appeared in Lloyd's list
oftonnage. The secondargument isthat the expressionin the Convention,
"nations with an important interest in maritime safety", gave authority
and gave power to the Assembly of IMCO to make an independent
analysis, an independent appraisal of the interest in maritime safety of
the varions countries independently of the fact of size or the fact of
whether that country was one of the "cight largest ship-owning nations".
In other words the so-called "discretion" that 1 have mentioned a
minute ago could be extended by the electors to try to estimate whether
there was enough interest in maritime safety to justify the election of
a member, although that member was not one of the "eight largest
ship-owning nations". 1 think 1 am summarizing fairly, >Ir. President,
tlie main arguments of the Govemments which are sustaining the election.
These two arguments run throngh the Written Statements of al1 those
presentation, as well as a difference in emuhasis or stress. thev basicallv

;ely on these two arguments. And 1 respe&tfullypropose'no/to answér
these two arguments and 1 hope 1 shall be able to demonstrate to this
not sound, solid arguments. First, the argument resulting from the word
"elect", which 1 think takes more than half of the Written Statements
presented, and rightly so, because 1 think this is the centre of the
controversy; the argument derived from the word "elect", the deduction
being that becanse the word "elect" is used, the election was not man-
datory and there \vas a wide power of discretion. Xow, Alr. President,
we submit that that is drawing a lot from one word. We submit that
substance is more important than form and that if we show to this Coiirt
that as a matter of substance, as a matter of intent, the election was to
be on the basis of size as to the first eight, the use of the word "elect"306 STATEJIEXT OF DR. FABREG (PASAAIA)-Z~ I\'60
is not sufficient, does not have enough weight to change the mandatory

nature of the election. Of course. we do not have to depend upon a
matter ofintent, because not only the intent but the language, the very
language of the Convention uses the mandatory term "shall be". So
right then and there-and again, Mr. President, weturn to another well-
known rule of treaty construction, of which there are many precedents
which have been cited in the Written Statements-we Saythat when the
language in a treaty, if carried to its literal sense, will result in an
absurd or unreasonable conclusion or would defeat the purpose or the
stipulation, such language should be interpreted in the sense in which
it would not lead to an absurd or unreasonable or self-defeating con-
clusion. That is esactly what we have now, Mr. President and Xembers
of this Court. The word "elect" may, and we so admit, in its usual. in
its most common, more current sense. mean a choice, the exercise of a
choice,but that isnot the onlyconnotation ofthe word "elect". "Elect" in
a broader sense may have and does have the connotation of"designation"

or "appointment". Ourdistinguished colleaguesfrom the Government of
Great Britain have made reference in their Written Statement to
dictionary definitions of "elect": we have found in a well-known diction-
ary aiithority, Funk and Wagnalls, that one of the connotations of
"elect" is "to designate", which is defined in turn as "to mark out or
name for a specific purpose, select or appoint as by authority". So we
submit to this Court that "appointment" is one of the connotations of
the word "elect", that "elect" does not always have the connotation of
"choice". and that, if a word is capable of various connotations and if
the Court finds that the use of one connotation, although it is the more
current, the more usual, will lead to an absurd or unreasonable result,
then the Court should adopt that connotation, although not the most
c~~mon. which will lead to ~~ ~ ~~-~ ~ wh~ ~ ~s~reasonable and carries out
more properly the intent of the Convention. So the use of the connotation
of "choice", "free choice", for "elect", with regard to the first eieht
members, is an interpretation which will lead to as absurd and unreason-

able result because it will lead to a contradiction, to a gross and O en
contradiction in the language of the Convention, namely, to have a Pree
choice in a mandatory election. You cannot reconcile the niandatory
language of "shall be the eight" with the criterion of an open choice.
Yoii could not fmd a more open contradiction in terms so, to avoid that
absurdity, we have to give to the word "elect" the connotation, the
interpretation.of "appointment" as to the first eight members of the
Committee.
hfr. President and Aiembersof the Court: 1beg the indulgence of the
Court if 1go out too estensively into this matter of discretion, and the
roper meaning of the word "election". My coiieagues from Liberia
Kave analysed this aspect of the debate also at great length, but this is
a matter on which 1 think'there cannot be too much emphasis and if
1 seem to appear repetitious on this point it is because, 1 repeat,
Mr. President, that 1think this is the very heart of this controversy. This
matter of discretion, if any, and the proper extent of that discretion,

is really the decisive point in this coiitroversy.
\Vith the permission of the Court, 1want to cite from the decision of
this Court in the case of the ConditionsofAdmissionofa StatetoMember-
shtp in the United h'atioits,which appears in the 1947.194 Reportsof
this Court: STATEMEST OF DR. F~BREGA (PASA>IA)-27 IV 60 307

"The political character of an organ cannot release it from the
observance of Treaty provisions established by the Charter when
thev constitute limitations on its Doweror criteria for its iudement.
To ascertain whether an organ ha; freedom of choice for its decision,
reference must be made to the terms of its Constitution."
This is fundamental in this case.
How much choice, how much discretion the Assembly of IMCO had
depends entirely on what discretion the Convention creating IMCO
granted to the Assembly. There is nothing absolute in the nature of
things which would tell us that, because the word "elect" appears in
this stipulation, that means in an absolute manner that the Assembly of
IMCO had wide, unlimited power and discretion to make this election
the way it wanted. Certainly not. \Ve have to see the Convention, we
have to see the fields in which discretion was eranted to the Assemblv
and the fields in which discretion was withdrawn from the Assembl?
and, instead of it. a mandatorv urovision was inserted. And we find that.
for the election of the first eight members, no discretion was given; a
mandatory phrase was stipulated in the Convention, while for the
election of the remaining six members flexible criteria were adopted
and discretion was permitted to the Assembly of IMCO. May 1read the
language briefly, referring to the election of the "six":
"...and the remainder shall be elected so as to ensure adequate
representation of hfembers, govemments of other nations with an
important interest in maritime safety, such as nations interested in
the supply of a large number of crews, or in the camage of large
numbers of berthed and unberthed passengers, and of major
geographical areas".

Here we have that discretion is granted as to the election of the "six"
on the basis of the criteria which are here described and enumerated.
Criteria which, by their very nature, are flexible and cal1forthe exercise
"eight". As to the "eight", 1repeat, at the risk of being too repetitious,
as to the "eight" we only have a mandatory language that the eight
largest ship-owaing nations had to be elected.
So. Mr. President. the measure of the discretion eranted to IMCO is
sonit:'tliitti~t must intcrpret froiii thr rrrnis of Ïhc Convention ;tiid.
no iiiatter Iioti. rniicli nrrninient wr hear anci hou, \iell-1)resenied tliosc
arguments are, we do not have to assume that there is & inherent nght
to unfettered discretion inthat body, or in any other body, but that
the extent of that discretion must come from the enabling Treaty which
created that body.
Furthermore, Mr. President, the suggestion has been made in the N'rit-
ten Statements that you would have some sort of an unreasonable
situation if you bad a body like the Maritime Safety Committee which
was partially elected'bymeans of free choice and partially constituted by
means of what has been called here "an automatic test". And, frankly,
we would Say to this boiiourable Court that we see nothing wrong with
that, we see nothing strange or unusual in the order of things to have
a body which is constituted in that fashion. \Ve have very important
bodies in international life,such as the Seciirity Council for instance,
which is partially coniposed of members determined according to a STr\TElIEST OF DR. FABREG PAS.~~IA)-Z~ I\'60
30s
fised and {~redefinedautomatic definition, and other members which are
determined by free choice. It is au a question of what the Statute
creating this organization intended and wished. So, if the drafters of
the Convention thought it best and deemed it fit tliat the majority of
the members of this Committee should be determined according to an
automatic test, such as size, or ship-owning, and the others as to election
(and 1 shall develop later on that they had very good reason to draft
the Convention in tliat fashion), if that is what tlir:y desire, there is
nothing unreasonable about it. On the contrary, that is a common
practice and surely we must give effect to such mandate.
.4nd, if 1 mav use the reductio ad absurduln proccss. 1 would hai~eto
say that if we are to adopt the arguments whkh appear in someof the
\Vritten Statemcnts of the Governments which sustain this election, we
may conceive of a case, and 1 may cite it, as an extreme example, we
mavconceive of a ca- ~ ~~ ~~ch aconvention would sa\,-let us assume-
th& there shall be a body, for example ail arbitration body, composed
of five Presidents, of which one shall be the President of the United
States, and four sliall bc Presidents chosen from various geographical
areas. In other words, 1 am just citing an example in which one of the
members of that body is specifically mentioned. and an election in the
sense of free choice is contemplated as to the four other members. Now
the logic of the position of the various Governments opposing us is that,
even in that case, if the word "elect" is used, if the Convention should
Say "elect five Presidents of which one shall be the President of the
United States and the other four shall bc freely chosen", even in that
case, 1 repeat, those Governments would contend that the use of the
word "elect" will imply the power not to elect the President of the
United States and to disregard that clear specification, because of the
absolute meaning of the word "elect" as connoting wide, unlimited
power of discretion. 1 have cited that extreme example just to show that
the word "elect" should not always be given an absolute and rigid
meaning but should, in every case, be interpreted according to the
language of the Convention and always having in mind that an inter-
pretation should he given that will not lead to an absurd or unreasonable
result.
So really, hlr. President and Members of this Court, this is a question
of treaty construction essentially. In what sense was the word "election"
used in this Convention with regards to the first eight and in what sense
was the word "election" used with regards to the sis? And we submit
that with regard to the first eight the sense of the expression mas that
of "mandate", of "obligation", and with regards to the six the sense is
twe see nothing illogical, we see nothing unreasonable in having one term
given one connotation for one purpose and a different connotation for
another. The su&gestion has been made by the honourable Govemment
of Xonvay that it mould be iilogical to think that the same word would
have different connotations in the same paragraph, in the same article.
But there is nothine. Mr. President. in the order of thin~s that requires
that, necessarily ad rigidly, a word will always have tohave theiame
sense wherever it appears. A word with several connotations may have
one connotation foione purpose and a different connotation for another
-that is elementary in the field of treaty constriiction. STATEMENT OF DR. FABREGA (PANAMA)-27 IV 60 309
[Public hearing of 27 APril 1960, afternoon]

Mr. President, Honourable Members of this Court, 1 think it will not
take me much time to terminate the phase of my presentation dealing
with the question of the word "elect", the meaning of the word "elect'-
as related to the scope of discretion granted to the IMCO .4ssembly in
connection with this matter.
The suggestion has been made in one of the prcsentations of the
Govemments that argue in support of the election, that if it was the
intention that the first eight members should have been appointed on the
basis of size, on thc basis of tonnage, a different language should have
been used in the Convention, in Article 28; like, for instance, "there
shall be eight Members who shall be appointed in such and such a
manner", and that the word "elect" would not have been used.

Now again, Mr. President, 1 respectfully submit that that is a super-
ficial criticism, a superiicial observation. Recause, if we examine the
wording of Article 28, paragraph (a), we find that this is a proper way
of drafting-the one that was actually adopted; because the verb "[to]
elect" in the past sense, "elected, is mentioned in the first sentence
with reference to the composition of the entire Committee. It is not
used with reference to the selection of the eight Members. The verb
"elect" is used twice. First, referring to the composition of the entire
Committee, second, referring to the election of the remaining six Mem-
bers. klaybe by actiially reading it, 1 would illustrate it much better:

"The Maritime Safety Committee shall consist of fourteen
Members elected bv the Assemblv from the Members. zovemme.,,
uf tliosc nati%,iisIii\.ini! ;in iml~Arrniiiit<rc,rin rnariliriit s;ifcty.
of wtiicti not Icitliniiziglit s11;illhc tlit: Inrc,.>i diil>-owningiintioiij,
aiiii thi. rcii1;iindcr ,halldlc,cl~so;ij10 cnsiir,. a<Ir~iu:ici)rcscii-
tation of Members, governments of other nations with an important
interest in maritime safety", etc.

What 1 observe is this: that as regards the remaining six, the Con-
vention says: "The remainder shall be elected ..." With regard to the
first eight, the Statute does not Say that the "eight shall be elected". If it
had been the intention of the drafters of the Convention that an election
in the sense of choice-of free, wide choice-should apply both to the
eight and to the six, the verb "elect" would have preceded the reference
to the eight as well as the reference to the six, but it does not appear

as preceding the reference to the eight. As to the eight, what wehaveis
the mandatory expression "shall be the eight". Consequently, the re-
ference, or rather the use of.the verb "elect" at the beginning with
reference to the fourteen, is a rcference to the composition of the entire
body-of the entire Committee-and it was perfectly proper to use the
verb "elect" in that general way, because no other proper term could
have been used. It would not have been possible to use the verb "[to]
appoint" with reference to the composition of the whole body, because
the entire body was not going to be appointed. There were six that were
going to be elected; so it was perfectly natural to use this method of
drafting, to use the verb "elect" in its general, in its broad sense, when
referring to the entire body, although only part of that body was going
to be chosen by means of an election in the true sense of choice, in the
true sense of free election. STATEMENT OF DR. FABREG (AANA>IA)-27 IV 60 311

owning nations indicated the presence of an important interest in mari-
time safety.
We shall demonstrate forthwith that such is the language and such
is the spirit of this provision in the Convention. But may 1, in passing,
state at this point, that when we, the Republic of Panama, argue that
there was no necessity to demonstrate an interest in maritime safety
tohe elected as to the eight Members, as to the majority, that does not
mean at all-not even by implication-that we have any doubts as
to Panama having a proper and an important interest in maritime
safety. We extensively demonstrated, in Our Written Statement, the
important interest that Panama has had, actually has, and continues
to have in maritime safety. We demonstrated how, for more than
twenty-five years-1 will Say for over thirty years-the Republic of
Panama has taken an active interest in maritime safety; has become a
party to al1 the conventions dealing with maritime safety; CO-operates
with other maritime nations in supporting the organs in international
life which regulate or control matters of maritime safety; has been
active in conventions and treaties whichhave been drawn up dealing with
matters of maritime safety, and takes al1 the necessary measures to
see that ships which come under the Panama flag are in a seaworthy
condition and are provided with al1 the necessary elements for the
protection of life at sea, and even goes to the point of selecting the best-
known advisers, such as Lloyd's, Bureau Veritas, etc., to ascertain that
ships are examined properly aç to seaworthiness and other conditions
dealing with safety.
Panama is not afraid to submit itself to examination at any time, to
be subjected to any tests in that regard. But we Say, Mr. President, that
as a matter of statutory construction, as regards the plain meaning of
language, it was absolutely irrelevant and immaterial for the Assembly
of IMCO to have gone into the question of interest in maritime safety
as to the first eight Members, and it is also immaterial and irrelevant to
argue that phase of the matter here now.
Again, let us go to the language of the Convention:

"The Maritime Safety Committee shall consist of fourteen Mem-
bers elected by the Assembly from the Members, governments of
those nations having an important interest in maritime safety, of
which not less than eight shall be the largest ship-owning nations,
and the remainder sball he elected so as to ensure adeouate re-
prt:sf.nl.iti~if \leinb?r;, ,ni,vzmriicntsuf othcr iinti<,iinirti an
iiril)urr;int intir,iiiii:<ritiii1:safel-1it.ai n:itions interestrdiii
the supply of large numbers of crews or in the carriage of large
numbers of berthed and unberthed passengers, and of major geo-
graphical areas."
We find that the Convention, with regard to eight Afembers, only
makes the requirement of size, of being one of the eight largest ship-
owning nations: "governments of those nations having an important
interest in maritime safety, of which not less than eight shall he the
largest ship-owning nations". In other words, the Assembly took as a
first test of an interest in maritime safety, "being one of the largest
ship-owning nations". The effect of this language is to Say as to those
eight that they alreadypersehave thatinterestinmaritime safety. Nowas
to the remainder, we must find that interest in maritimesafety according312 STATEMEST OF DR. FABREG (AASA>IA)-Z~ IV 60

to the criterion which is described here as saying "nations interested
of berthed and unberthed passengers, and of major geographical areas".rs
As to the remaining sis, the Convention is indicating the criteria that
will decide, that \vil1serve to measure, to determine whether they have
an interest in maritime safety. .4s to the first eight, no such criteria or
an!. other criteria are indicated; if it had been the intention that the
first eighthould have met the specifictest of interest in maritimesafety,
the criterion for determining that interest would have been set forth in
the same inanner that it \vas set forth witli regard to the remaining
six. but no-no such criterion was ~rovided. Whv? For the verv reason
th& being one of the eight largest Ship-owningnations wascon~lusively
aiid iiiaiiticii>ationan establishment ofan important interest in maritime
safety.
Mr. President and Members of thc Court, 1 was at the point of es-
tablishing that the eight largest ship-owning nations, by the terms of
the Convention. had ber se an imvortant interest in maritime safetv.
1had demonstrated h&v that flows'fromthe language of the convention
and we find in the latter part of Articl28 that, wheii making a reference
to the six remaining mèmbers, thc Convention says "so as to ensure
adequate representation of Membem,governments of other nations with
an important interest in maritime safety...".Now, we lay a good deal of
stress upon this word "other". The Convention says that the ~emaining
sis shall be chosen from among "other" nations with an important
interest in maritime safety, which means, in plain language, that the
first eight or no lesshan eight which have been immediately mentioned,
or that had been mentioned in the iminediately preceding sentence,
haveanimportant interest in maritimesafety.Their interest isestablished
l~igu:tgc rrfersIOïhc ottirr six ;id indi'czitcs~h; critcrtliziarcnIOhhe
uscd to determitic ultrttiér or ~iottlie?,do Iiave an imlwrtaiit iiitrrrst iii
maritime safetv.
But not onli the language, Mr. President, of Articlez8establishes that
conclusion. Simple logic and what we may cal1the realities of maritiirie
life. what we miv call the rationale of tliëse rules establislied bv Article
z8,plainly indiCate that the largest representation in the Cornmittee
Iiad to be given tothe nations with the largest foniiage under their flag.
\flhv? Because the verv Durvose of the Cominittee. aiid for that matter
thedvery purpose of 1kC0,'the entire ~r~anization, was to ensure an
international organization that would CO-ordinateaction among mari-
time Powers thëfaculty to take measures tending towards betterment,
progress, organization of maritime systems and devices, which would
guarantee effectively the highest degree of safety at sea. And, aswe
bring out in our Written Statement-1 am not going to reproduce that
now-the nations that are in the better position to affect the largest
amount of tonnage, the largest number of vessels, and to have those
ships. those vessels, adopt the proper rules, the proper regulatioiis, are
the iiations \\,hose flag is flown by those vessels because they, by law,
have jurisdiction over the vessels andare the ones that can impose those
rules and regulations on these vessels. \frhen we come to the part of this
presentation which deals with the so-called "law of the flag", weshall
see that, asan elementary principle known to everyone, a ship is under
the jurisdiction of the law of the flag, that the nation under whose STATEJIEST OF DR. FABREG (PANADIA)-27 IV 60
313
iiag theshipis, is the one that isempowered to impose the proper rules and
regulations upon that ship. Therefore, it was natural that in this Safety
Committee the majority, the largest representation should be that of the
largest ship-owning nations. That is only rational, perfectly natural,

and in the travaux @ré@aratoire lsading to this Convention, we find that
originally it was even thought that, of a Committee of twelve, nine
should be the largest ship-owning nations. And then, by way of compro-
mise, in the course of discussion, the number was changed from twelve
to fourteen and the majority of eight was retained for the largest ship-
owning nations. And, even at that, with the possibility that there could
he more than eight because, as 1 have stated, the Convention says that
"not less than eight", in other words not less than a majority, shall be
the largest ship-owning nations.
1 think, Mr. President, we have demonstrated to this bonourable
Court that the two arguments on which the Governments supporting
the election try to justify the action of the IMCO Assembly, name-
ly, the so-called argument of discretion based mainly upon the
word "elect", and second, the argument of maritime interest as to
those nations, are unfounded; that they. have no solid foundation
and that, therefore, thereis no-proper justification in those arguments.

What remains before this Court to judge is the plain and simple fact
that the Assembly of IMCO had to elect the eight members appearing
in the list, the authoritative list, that the Assembly itself had choseri as
the proper basiç; and that, nevertheless, the Assembly failed to elect
those eight nations which were the largest ship-owning nations, and,
instead, in an arbitrary manner, in a capricious manner, in a discrimi-
natory manner, omitted to elect two of those eight and elected instead
two which did not belong ta the eight largest ship-owning nations. That
action of the IMCO Assembly is plainly invalid, is plainly illegal, was an
abuse of power, was an abuse of discretion, if there was any, and is an
action that should be checked. that should be curtailed bv this venerable
Tribunal.if we are going to ha"e in international life the came checks and
balances we have in private life among nations which have guarantees
against excesses of po-werand authority. .

"The political character of an organ cannot release it from the
observance of Treatv ~rovisions established bv the Charter when
they constitute limit~t~onsfor its power or criteria for its judgment
To ascertain whether an organ has freedom of choice for its decisions,
reference must be niade-tg the terms-of its Constitution."

These are the words of this Court in the case of the Conditions of^

nafions and ithad no right, no power, to insert new EonditiGnsthat were
not present in the Convention to determine how the election of those
eight nations should be made. The same as this Court found that there
was no right to impose conditions in the admission of members in the
United Nations other than those appearing in the Charter, we Say here
that whcn the Convention made it clear, unequivocal, that being one of
the eight largest ship-owning nations gave a right to election, the IMCO
Assembly had no right to establish, as they apparently did, new con-

ditions, such as Iiaving a large number of crews,a large niimber of tech-
22314 STATEMEXT OF DR. FABREG APANA~IA)-Z~ IV 60

nicians or criteria like that which were not present in the Conven-
tion.
We submit, hfr. President, that the action of the Assembly is invalid
and that it should be so rulcd in this case because, first, the IMCO
Assembly violated the terms of the Convention itself, as 1 think we have
demonstrated with regard to Article 28 (a), and second, because it
violated well-known principles of international law, as 1 shall proceed
to demonstrate now, with the permission of the Court.
Well-known principles of international law were violated. Wesubmit
that the first of those principles is the one that is illustrated in the
Polish Nationality case which is cited in our Written Statement, that
words in the Convention or in any instrument, for that matter, which is
for interpretation, must beinterpreted in their usual and natural meaning.
And only when that meaning is leading to an absurdity, then another
meaning than the usual meaning should be chosen. The Convention was
plain. And yet, as to the eight largest ship-owning nations, the IMCO
Assembly failed to give to those words "the eight largest ship-owning
nations" their plain and obvious meaning.
In the case of the Polish Nationality, decided by the Permanent Court
of International Justice and cited on page 176of the pamphlet (Written
Statement of Panama) the Court said:
"The Court's task is clearly defined. Having before it a clause
which leaves little to be desired in the nature of clearness, it is
bound to apply this clause as it stands, without considering whether
other provisions might with advantage have been added to it, or
substituted for it. To impose an additional condition not provided
for in the Treaty of June zSth, 1919would he equivalent not toiiiter-
preting the Treaty but to reconstmcting it."

We suhmit that that is another mle of treaty constmction that was
violated bv the IMCO Assemblv-failure to eive to the wordine of the
convention its natural and usGa1 meaning 2nd the injecting0f new
criteria, of new terms so to speak, not existing in the Convention, of new
conditions. in a manner thaï amounts to whit was so well described bv
the Court ai not iiiti.rl~rt~tinyt.lic Trinty, biit rccunsrriiiiiiig it. '~he;
made anc\v Article ~8(~1, and riiadc a rule for tli~~mscl\~ti?.aii arl,itr~rv
1ii;inncr.rti;~~\ras differenr from tlii:riils coiit2in:d intlicc~~~iivciitioii.
111.Prcsidrnt. \veaul,iiiit tbat tlirc~ princil9ltj of cnnirriiction of inter-
!~:~rioii;itlrï;itivert violared Iiy tlie actioii of 1.\ICO.'l'litirst nnr 1
itisl iiiciitioiict1i;i\i.urdsiiiIII<- reatv iiiiisLC tci\.?thcir tisual and
hatiiral meaning. The second is that whénail inte6rt:tation leads to an
absnrd or unreasonahle result it is the dnty of whoever is interpreting
that provision to see if there is any other-possible interpretation thaï
will not lead to such an absurd result and will be in better harmonv
\vit11tlic iiitcni~f!lie Trcjty. 'l'litliird prul,i,sitiiiri.lir«ù;ibl!.cuiineited
urirlitlie .~rîonil.i; tliat \i.hencvcr I.~n~?iarriii a ~>articuI:irCo~ivri~tinn
or Treaty is not entirely clear, or isuam%iguous'in some manner, the
intent of the Treaty should be ascertained by studying and analysing
the Treaty as a whole.
We submit that these principles were disregarded by IMCO in the
action it took in this particular election. \Ve submit that the first, that
"words must be given their usual meaning", was violated, as 1 said
hefore, bynot giving to the words the "eight largest ship-owningnations" STATEMEST OF DR. FABREG PANA.\~.~)-z~ IV 60 315
their natural meaning. Particularly when it refers to "ship-owning",
becartse as we developed in our Witten Statement, "ship-owning",
hoth as a matter of urcctice in maritime lifeand as it a~~ears-intreati'es.
refcrs always to tori;ia;.c iiridrr a pnrticular flag. "Skiil)-o\r.ning"does not
refer to oivrierslripof shil)? by the State. in wtiat ii,c nia)' cal1ttie civil
sense. as is well settled bv the treatiej \vcciter1lthc Safetv of I.ife at Sea
convention, the Load ~ine Convention, and a &eat nukber of bilateral
treaties in which "ship-owning" is always taken to mean registry of
tonnage under the flag of one nation).
So, once it became evident to INCO, to the Assembly of IMCO, who
the eight largest ship-ouning nationswere, by well-known practice, inter-
national usage, then u-esubmit that by failing to elect two of those eight
nations, that amounted-and here we think there was a more serious
violation of international law-to disregarding the lawoftheflag. In other
words-and thatis why the Republic of Panama takes a position some-
what more serious with regard to this phase of the case-we feel that the
failure to elect the Republic of Panama when it was established that it
was one of the eight largest ship-owning nations and when ship-owning
meant registration under the flag, was simply a disregard of the flag, a
going behind the flag, so to speak, and that that was a most serious
offenceagainst the Republic of Panama. 1shall develop this point a little
later with the permission of the Court.
The other principle of treaty construction that, u-e submit, was not
followed by IMCO in this election is also developed in our Written
ascertained by reading the Treaty as a whole. \Ve think that was noteen
necessary because Article 28 (a) was clear enough, but even if the IMCO
Assembly thought tbat it \vas not clear enough, then it was its duty to
read the Convention as a whole and to try to ascertain the intent or the
spirit of the Convention in an integal manner and then proceed to the
election on that basis. We submit that by utilizing that process it would
have become evident to the Assembly that the spirit or intent of the
Convention was that the largest ship-owning nations should have the
lar,,st reoresentation in this Committee.
\\le find rtiar unc of rtir I<iirufuttic'uiiiiiiirtcc!istu ;rdopt ine:rsiircs
of snfety. ,\nd rhen ne nsk: \vho\vcrethc more able or caplble of ensiiring
ttie ;~<lui)ti~ftliosc.nilt-sof snfctv and nrotcctioii?-Tlic rintioiis\$.hose
flag wa; flownby those vessels.Wefind, ln analysing the various sections
of the Convention, that the budget of IMCOis mainly distributed on the
basis of tonnage registered under the flag. We even find that the date
of entry into force of the IMCO Convention is based upon registered
tonnage. The Convention says: "this Convention shall go into effect
when so much tonnaze have ado~ted the Convention". So it was tonnage
al1along, it was size,Tegistration: which was the main factor in every waj,
which was established as the most polverful element in determining
the com~ositionof this bodv.
1 tiavi stated. \Ir. ~>rr,sidcnt.tliat nriotlicr riilc ttint \vas not follo\i.ed
is thar \\.henevcr a certain interl>retation lads to an absiird or illogic;rl
decision or rcsult ;inuttier iiitcri~r~tatiuiishorild Lie;idui~te<tlliat does not
lead to that conclusion. Now, ifwe read the minutes 'ofthe election Ive
on tonnage, as the basis to proceed on,yet the speakers for the majority,
the ones that "carried the election, so to speak, in stating the reasons316 STATE>IEST OF DR. F.~BREGA (PAS:~>~A)-Z~ IV 60

for the election, showed that they were giving to tlie Convention an
interpretation ivhich surely was leading to ari absurd and an unreason-
able conclusion.
The Representative of Great Britain stated in words that practically
amounted to saying that they had to take into consideration ownership.
private ownership of vessels. Another one of the delcgates, 1 think of
Norway, took a similar position, that they hadtotakc into consideration
'whether the natioii had a good number of crews under its nationality,
technicians of its nationalitv. etc.. as beine factors which Iiad to be taken
into consideiation tq selec<ihe eight largest ship-owning nations. Now,
right then and there. totake a criterion for ship-owning, for determinina
what a shiv-owiiine nation is. when such conced had a aandard meaning -.
iiir:iiiiiir:toniiage :iiiler that fl:ig-IO t;ikc a critcrion Iiketlie niirnl~eruf
rrtxu,:,,niiml)cruf iecliiiiciarisr ri vat<\: nersliill,etc.-tliat aiiioiiritedIO
elements for the determination of shipowning nations that surely were
likely to lead to the most confusing and disturbing situation. This has
been amply deiiioiistrated in the Written Statement. You may have a
ship under the British flag withbeneficial ownership in the United States
with a mortgage in the name of a citizen of Argentina, with an equity
held by ttustees of another nationality. The ship may be chartered to a
national of another nation. In other words in the world of today, if you
ship, you cm very well mn into a tower of confusion, because you mayial owner-
have interests distributed amona various nationalitics and that is whv
iriicrii3rioiial Iaiv,\i.liicliiiiiist hcclcar :ind iiI)t~irc~:isi.ritlic siibject,
ha3 adoptcd III<sirriplr riilc thar tlie iiaiioii;ility of th*:sliipi:tlic n.iriu-
iiality of its flag. \Y<:tlieii sec tliat (lie :liieiiil>ly of IlliO \vas yruceediiig
uii ;iiahsiird aiid aii iinrï;iori:thlc hasis cn [tint very puiiit.
1. 1'rc.jidcnt. iiiour \Yrittt.n 5tnt~meiit wc iiiake rlic alle~;itiuii tliat
this election was arbitrary, was discriminatory, and was capri'cious.Xon
we do not use these epithets lightly, we use them after considerable
thought because we think that each one is justifiable on thefacts of the
case. It was arhitrarv because the IA1COAssemblv failed 10 elect mem-
bers tliat it \vas~ U U I tirlcct iindcr ttic Coiivcritinnarid, iiistc:id. <.lcrti:d
mcn1lr:rs tliat Iia(l iio right tu Ilitli,ctt!d. Ir \ras dijcriiniiiatiiry I)ccause
it discriminated againSc two flags-the flags of tao nations were dis-
regarded for no valid reason, just in a capricious manner: and we use
the word "capricioiis" because we found, when we analysed the action
of the IMCOAssembly, that it is very difficiilt to find inore contradiction
in the action of a body than we find here. The IMCO Assembly accepts
implicitly the standard or the definition of ship-owniiig as meaning flag
registration, by adopting Lloyd's list ivhich is bascd on tonnage, or
registration under the flag, as the basis for the election. It announces that
it is going to proceëd with the election on the basis of that list.The speak-
.er, the delegate of the United Kingdoni, States to the Assembly that
there is no ouestion there as to the flaes of convenience. that such flaes
arc iiot jioi& to I)c;in;il!.j,-d.Ht7piej i;irtlicr ;iii<lsays il;:it cveryliui;
satishcd tti;it tlie sliii~iiiiidcr the I.il)eri:iiiflac. iitli~tliiof Paiiarna.
are shius of-1 wait to lise the same words-"u.ere ain&e themost
modem, the most ul>-to-datein the world". And yet lie goesGn with the
statemeiits that lalCO has to gointo considerations of ownership, number
of technicians, and such othër criteria alien to the I>roposition,when
making the election. So it is using the flag as a test when it is using STATEhlEST OF DR. FABREGA (PAXA~IA)-Z~ IV 60 317

Lloyd's, and it is going behind the flag whcn making the election on the
basis of criteria different from the flag, and it goes behind the flag when
it is savine that it is not eoine behind the flae. Sn this was not onlv
arbitra;? &d discriminatory bGt it was, as weuliave said, action which
denotes a capricious attitude on such a serious matter as the election of
this importait body.
The disregard of the law of the flag, MI. Fresident and Members of this

Court, is one of the most serious phases of this entire matter. In an in-
direct manner we find that this election. made in this fashion. amounted
ro n disrtgard 1)).an irnli~irrdnt I)udy iii tliiiirt-rii:,rionnl ni:iririiiic tvorld
of rlic 1.i)~of tlir 11;ig.Ii ii iititi<.c<sb.ir\for iiic no\v ro rt.ler:it \iliat h:is
~~VII co~~~i~~iis;,Iy1(1IIIth,. \\'ritt<.li .Sr:tt~mcnr;itic\vhicli is tl~ctr:itli-
tioi~al atid sr111todtiy [lie \~~~ll-r~~~~~ l~rirr~~p~llof inrvrti:t~io~~:lal\v:
rlitir:,il.11,i- unclcr[tir iiirisilit.tiofitlic I:inoi ils 11:ig.\V: I\ti<iatl.*t
tIi;it1s~v~~ll.~~tt~lix lilitvrn it1011;fiI l;iI.;it ~18'oiirrIl:.> Ii:OCC:~SIOII
to reaffirm it in cases like the Lotus case, the Muscat Dhows case, and
furthcrmore we know that the principle of the law of the flag, despite

the efforts that are being made in some sectors today to erode that
principle, still is a firm and solid principle of international law and is the
only one which is likely to maintain the necessary law and order in the
life of the sea. And very respectfully, 1 would like to bring to the atten-
tion of this Court an article which appeared in the last edition of the
dmericnn Journal of International Law, by hfr. Douglas, in which he
calls attention to the great danger that may result by the adoption of
such loose theories as the so-called "genuine link" or any other similar
theory that will depart from the traditional principle of the law of the
flag.
Of course we al1 know that the "genuine link" tlieory is not law

because it appears in a Convention which has not yet been ratified, and
it appears in a very loose manner without sufficient definition and in a
way that really does not carry much meaning. Still, it is very well
bronght out by Dr. Douglas in this study that 1 just referred to, he very
well develops the point that in international maritime life it is important,
it is imperative that there be order and law, and that, he says, can be
determined only by the law of the flag. The moment that you try to go
behind the flag and to permit the disregard of the flag by reference to
other complex considerations, like private ownership or any othcr kind;
you are just opening the door to chaos and disorder in maritime life
since you are practically giving the green light to any State to disregard
the flag of any vessel and leave that vessel uithout protection at sea,

and destroy that order and law that is indispensable in maritime life.
Mr. President, Members of this Court, 1 wish again to thank the sourt
for the patience and time given me and 1 think witli afewfinalconsidera-
tions 1 shall terminate this oral presentation that 1have been given the
privilege to make. 1 was referring to a study appeared in a recent issue
of the American Journal of International Law indicating the danger that
results in international life if the law of the flag is not followed and
respected and it is weakened with theories complcx and vague, such as
the so-called "genuine link" theory which, 1 repeat, is not the law of
today. And in this admirable study proper distinction is made of the
nationality conferred by a nation upon a foreign individual which adopts

the nationality of that nation and the nationality of a ship conferred
through the flag. And it is very well demonstrated that when a foreigner318 STATE\IEST OF DR. FABREG (PANAMA)-27 IV 60

acquires the nationality of another nation then you have a case in which
it is~ossible that tliat individual mav Iiave two nationalities. ..rhaus
someiimcs e\.cn more. Ihit in maririnie life you do not have the
WCorfiiirautliors likc Oppenlicini saying preciscly tlint "n sliip witli twond
tlngs docs nor h:~vetlic prorcction of any". So itis uiidérstandable tliat
wlieiivou arc de:iliiiii,itiiidi\,idu3ls ).ou iiiay find [lit:natioiiality of ail
iiidiviclii:il linviii^.two ii;itioii;ilitics bcinr a~ialv~;itliird nation
and sometimes being entitled to a certarn amount ofdscrutiny or dis-
cretion in appreciating that plienoineiion of dual nationality. Rut not
in the case of maritime life. A shipIiasone flag and only one flag, and so,
if that flag is not respected, if it is not properly regarded, youarecreating
a situation of lack of proper order and law at sea. And that is the thesis,
the very thesis, that is brought out in this study. It is also pointed out
that in the case of individuals, an individual, whatever his nationality,
he may even have no nationality at al], he may be a stateless person,
but when he eoes to a foreien countrv. usuallv and normallv he has the
>rott~ctiorioftlir laws of Thar courittry wliikliprotects nition:ils :ind
fo.eigncrs;c lins policc ~irotectioii,sanitnry lirotectioii, al1 the norina1
~rot~.ctionsthat a Srarc mants IO iiationals aiid forcirrncrs. Rut when a
Ship is at sea, that ship only Iias the protection of thueState of its flag.
So it is a very serious proposition, it is a very dangerous proposition to
"beneficial ownership" or "genuine link", or some other, against the
weli-known rule and principle of the law ofthe flag. So one of the most
serious aspects of this case, if we may respectfully submit. is that the
approval or the condoning of the action of the IRlCO Assembly does
amount, if not directly, at least indirectly to a disregard of weli-known
principles relating to the law of the flag ofa vessel.
And just to terminate this presentation, MI. President, and 1 have
left thisstatement to the 1st. 1am going to refer to the fmal part of our
written presentation in which Panaina takes the position that the action
of IMCO was an offence against the sovereignty of the Republic of
Panama. And may 1 start this with one explanation. We realize that
this is a very serious statement. Furthermore, the Republic of Panama
is not super-sensitive, is not trying to find an offence to its sovereignty
where none exists: wewould much have preferred it if wecould not make
this charge in such strong terms against the IhlCO Assembly. But we
fmd that it is inescapable to come to this conclusion: we ha~rethe law
of the flag as a well-settled principle of international law, we have two
Assembly, then we have the IhlCO Assembly in a deliberate and dis-
criminatory manner ignoring these two flags and replacing those two
flags by the flags of two other nations; then we find in the Charter of
the United Kations the clear, the cardinal principle which is the first
in the Charter, that aii nations shall have equal sovereignty, that there
shall be "sovereign equality" amoiig ~iatioiis,to quote the exact words;
and then we also find in the Charter of the United Nations, in Article 2,
paragraph 7, that there shall be no interference by one State in the
interna1 matters or affairs of the other. So we are bound to conclude
that when two nations have their flags disregarded-when Panama, as
1am speaking onbehalf of the Republic of Panama, has its flagdisregard-
ed and its rights violated-that sovereign equality among al1 nations STATEUENT OF DR. FABREG.(~ PAYAAIA)-2 7V 60
319
has been disregarded. And when IMCO undertook to go behind the flag
and ascertain the terms and conditions of ships registered under the
Panama flag, it went into matters that were internal and pertained
exclusively to the Republic of Panama, because it has been well brought
out by test-writers and by jurisprudence that a State is entitled to
grant its flag to ships seeking it, upon the terms and conditions that that
State would determine. So IMCO was going into the internal affairs of
the Republic of Panama and was disregarding the flag of Panama and
not placing it in the terms of equality that the Charter of the United
Nations reauires be observed as to ail nations.
And here 1 bring to a conclusion this presentation, >Ir. President and
Members of this Court, and mav 1 Say in closinx that the Republic of
Panama. smaU as it is as a nation, :bas been kery much iiterested,
historically and for the future, in the development of international law;
that Panama has not and is not making this challenge of this election
for the sake of contradicting or trying to embarrass an international
body. On the other hand, the Republic of Panama has CO-operatedin
international conferences and throughout its international life in the
development of international organs that tend to bring progress in
maritime Iife, safetyin maritime life, and in general a closer CO-operation
among nations. Any tendency, any movement to strengthen the existence
of international organs and make international life more effective and
more responsive, has had and will have the CO-operationand the unre-
served endorsement of my country. But at the same time we realize
that for the very sake of that development of international law and that
development ofan effectiveinternational lifeand ofeffective international
organs, it is necessary that we resort to sources like this very high and
hononrable tribunal whenever action is taken bv anv one of those
orgiins \iliiclii iii-scvi;sof irs atitliority iir in al~t.f'iti 1>owers.If i~
only 1)).hn\.iiig rhosc cliccks of ~uic;si\.t. ncrion. or iinautliorizt:(l tictioii,
1113~ wc ~11;tlIseriiitcriiatioiilif,:i.ruurcasiii.î \it,ll-halancç~l iiiaiincr.
Therefore Our attitude here is not'onë of challenging without reason,
but on the contrary of challenging the action of a body in which we
wish to participate but in which we want to see that international law
and international conventions are properly respected.
1 thank the Court for its patience, and 1again wish to present to this
Court the resuects of the Re~ublic of Panama and the ~rofound ex-
111t~sit~iufs~iikgr.itittidc fotl;rIioiioiirniid lrivilvg<,flia\:iii3appeared
Lçfurv tliisIiiglitst tribiiii?l. 5. ORAL STATEAIENT OF lfr. HAGER
(REPIIESENTI~ .IE GOVERNIIENT OF THE UNITED STATES OF AMERICA)

AT TH12 PUBLIC HEAKING OF 28 .\I>RII1960. >IORNING

MI. President, Memhers of the Court.
Uefore commencing my statement, 1 wish first to present the respects
of the Government of the United States of America to this Court, and
also, if 1may, to express my deep persona1 appreciation of the honour
and privilege of appearing before ihis Court this morning. And now,
with your permission, 1 shall commence the Oral Statement on hehalf
of the United States of America.
As the Court is aware, there is presented to it in tliis proceeding. for
an Advisory Opinion thereon, the question whether the Maritime Safety
Committee of the Inter-Govemmental Maritime Consultative Organ-
ization, which was elected on the 15th of January, 1959, is constituted
in accordance with the Convention for the Establishment of the Organ-
ization, which 1 shall hereafter refer to as IMCO.A nuinher of Written
Statements have been filed with the Court on hehalf of those Govern-
meiitj inclu<liiigni? owii, \vliiclicontend tliat tlir. <~iic,tionpiit tttit:
Court in ikii3l~rocc.c<lii:.iuiild be ans!vt:red in tlic ncgati!'l'lit:(;ut.-
ernrii~.ii$if I.il>eii;;iii<tlic (;r>\.t,riiiiicntr,i 1';iiininali.i\.c :~l;ilni:tdt:
most thorough and comprehensire Oral Statements to the Court in
this proceeding in the course of ivhich tliey have commented in detail
upoii the W'ritten Statements of those Go\rernments which contend for
the opposite vie\%..In view of the careful argument which has thus far
been presented to the Court in both written and oral form. it does not
appear possible at this point to avoid entirely touching upon ground
which has already been so carefully covered. Although it will therefore
involve the neccssity of some repetition, 1 believe that 1 should never-
theless attempt, in as brief a time as possible, to take up once more
three points iri the case which the Government of the United States
views as the most important for the resolution ofthe question presented
to the Coiirt for its decision.
It should be said at the outset that the iundarnental object of the
present proceedings is to secure from the Court its opiiiion as to the
correct interprctatioii of Article 28(a) of the IMCO Convention.
.4rticlzS(a), as the Court knows, provides in eflect that the Maritime
Safety Committee sliall consist of fourteen members elected from the
nations ha\.ing an important interest in maritime safety, of which
not less than eiglit shall he the largest ship-owning nations, and the
remainder shall be elected so as to ensiire tlie represeiitation of other
nations with an important interest in maritime safety, such as nations
interested in the su~~, ,of laree"numbers of crews or in the carriarre -
oi l;~rg.'niiniberut bcrtl,e<lniiil iiiil~ertlii!dpnssçng;<ii<the rt:l>rrsr.ri-
t:itiokgfin.~]orgrogrn]~Iiic:il~irras.\\'lt:tt ,\rtzS(.<, (I,,VISto crc:itc
tivo c:irecoriesiiiincnil>cii. \vliiili I sh;~ll<iccnsiuii:illvreicastotlie
eight and the sis, although the Assembly is of cours; in its discretion
empo\r,ered to incrense the eight.and r1ecre;isetlie six. ST.4TE>iEST OF \IR. HAGER (U.S.A.)-28 IV 60 321

1 should now like to outline briefly the views of the United States
on what appear to be three basic issues with respect tothe interpretation
of Article28 (a), and then to discuss each one in turn in a little detail.
One fundamental issue with respect to the interpretation of Article
28 (a) relates to the term "largest ship-owning nations". As set forth
at pages 131-14 1f its Written Statement, the United States considers
that this phrase rcfers to those nations with the largest amounts of
tonnage of shipping registered under their laws, and not to the Govern-
ments which own the largest tonnage as State property or the States
whose nationals have property interests in the largest tonnage.
-4 second issue relates to the question whether the largest ship-owning
nations are automatically deemed, for the purposes of Article 28 (a),

to have an important interest in maritime safety. The United States
considers that they are automatically deemed to have an important
interest in maritime safety.
Finally, the issue has been raised whether Article 28 (a) imposes a
inandatory obligation upon the IblCO Assembly to include in the Mari-
time Safety Committee at least the eight largest ship-owning nations,
or whether the Asscmbly has a degree of discretion oii this score.
The United States is of the view that Article 28 la) does reauire such
nations to be included in the Committee, and that the ~Ssembly is
bound to comply -i~h this retluirement in electini- members of the
Committee.
It follows that, since Liberia and Panama were at the time of the
election of the members of the Maritime Safety Committee on Janiiary 15,
~gjg, the third and the eighth largest ship-owning nations iri the world,
respectively, from the standpoint of registered tonnage, the United
States considers that they were entitled to be elected as members of the
Maritime Safety Cominittee. In view of the fact that they were not

so elected, the Maritime Safety Committee is not constituted in accord-
ance with the Conveiition for the Establishment of the Organization
and it is therefore respectfully submitted that the answer to he given
by the Court to the question put toit should be in the negative.
hlr. President, Afembers of the Court, 1 would like now to discuss
each of the three issues of interpretation in slightly moreetail.
1 will touch first upon the point that the term "largest ship-owning
nations" means those nations which have the greatest amount of ton-
nage of shipping registered undcr their laws.
Several different contentions have been advanced as to the proper
interpretation of the term "largest ship-owning nations". One possibility
that has been raised is that the term refers to ownership by each State
in the civil or property sense. However, as noted by the United Kingdom
in its Mrritten Statement, at page 239 of the printed voluine. since
comparatively few States own large fleets of merchant shipping, it

is apparent that this is not aliat \vas intended. Indeed, this interpre-
tation does not appear to Iiave been espoused seriously in any of the
statements submitted to the Coiirt.
It has, howe\-er. been contended in several auarters that the term
must beinterpreted to mean ownership by natikals of the State con-
cerned. For esample, the Government of Switzerland states, at page 217
of the printed volume. that the first mou^ of ei~ht is constituted with
a viewto the representation of matezal iiterests in relation to vessels,
sucli as ownership, mortgiges and the like.322 STw!Z&lEsT OF 3IR. HAGER (U.S.A.)-28 IV 60

The Government of Norway also contends in its Witten Statement,
at pages 243and 244of the printed voluine, that the phrase refers to
the beneficial ownership of vessels by the nationals of the country
in question. On this hasis, it claims that tlie statistical table of regis-
tered tonnages furnished by the Secretary-General of IMCO at the
first meeting of the Assembly would have to be corrected in order to
arrive at figures which would take due account of the proper meaning
of the phrase "largest ship-owning nations". In effect, the Governmeiit
oto each nation the tonnage beneficially owned by its nationals, witli
special corrections to give effect to situatioiis where actual beneficial
ownership rests with nationals of a State different from that of the cor-
poration or other juridical person owning the ship.
However, as lias already been pointed out in the \Vritten Statement
of the Governnient of Panama, at page 181 of the printed voluine,
this would result in a rule of impossible application, and indeed this
is more than ani~l..demonstrated bv the descriution in the Oral State-
nient uf11.~c;overnnicnt of Liberi;~of tlie coiiiplcs intcriiatioiinl cli:ir,ic-
ter of tliiproperty intercsts iiisliipping. Thiit desciiptioii gr~pliiu;illy
illustratej hou sel<lornth.: conccpt of owii~~r~lii~i>iildserve ro coniicct
a stiip \rialsingle St;ite, in vizjr.of tlic rn3ny different pro[h.rty intcrests
and national coniiecrions tlintareEO often representcrl hy tlie murtgigor.
thc murtt--a~~r.:.iiid the \.arious kirofctxtrterers. Tltcjc ci~nii)licatioiis
are of course multiplied when we introduce the juridical person, such as
the corporation, which can derive its legal existence from the laws of
one State, have its principal place of business located in another, be
managed by directors aiid officersof still another State or several States,
have its property mortgaged to nationals of still otlier States, and,
fmally, have its shares owned as a matter of record by nationals of
certain States but beneficiauy owned by nationals of other States, aiid
even have bearer shares ahich give no clue as to ownership. Again,
to be practical and workable the test of ownership would of course
require that the true location andextent of al1of tliesignificant property
interests in eacli ship be readily ascertainable as ail objective matter
possible. But even if it were, it would also have to be recognized that not
such property interests are subject to frequeiit change through stock
market transactions, private sales, the creation of loans and mortgages
and the like. Finally, if there were to be a fair allocation, there would
also be theinteresting question of how to evaluate the differentproperty
interests on a commoii scale, as,for instance, evaluatiiig a loan as against
an equity interest or a charter contract.
The Convention draftsmen could not have intended to incorporate so
unworkable a concept into Article 28(a) as a test of eligibility for ineni-
bership in tliis important organ of IWO. It is subrnitted that the Court
should not construe the phrase "largest ship-owning nations" so as to
lead to such an uiireasonable and absurd result. In this connection 1
would refer the Court to its statement in Cornpetenceof the General
Assembly for theAdmissio?~of a State to the United !\'atiotts,I.C.J. Reports
1950, at page 8, and to the earlier case of the Polish Postal Servicein
Danzig there cited, decided by the Permanent Court of International
Justice, which is reported P.C.I.J., Series R, No.II. STATE>IEST OF >IR.HAGER (u.s..~.)-28 IV 60
323
It is further submitted that this concept would not accomplish
anything useful from the standpoint of the objectives of the IMCO
Convention, even if shipping tonnages actualiy could be allocated among
the nations of IMCOso as to give equitable effect to the various inter-
related DroDertvinterests of their national~. It is difficult to see what
practicai vâlue.such a listing would have from the standpoint of the
furtherance of the functions of the Maritime Safetv Committee.
It seems abundantly clear, therefore, that th6 only meaning whicli
can sensibly be attributed to the term "largest ship-owning nations"
is that it signifies the nations with the largest quantity of tonnage of
shipping registered under tlieir laws. This is the common understanding
of the tenn "ownership" when used in connection with a nation. As
noted by the United States in its Written Statement, at pages 131-132
of the printed volume, Lloyd's Register itself uses the words "belonging
to" and "countries where owned" to refer to the registry of vessels.
Registration provides a clear criterion, the only one which is readily
ascertainable, avoids confusion, and definitely connects the vesse1
with one single State. It is therefore an eminently workahle criterion
by comparison with the others, afactor which the Convention draftsmen
of Article 28 (a) must necessarily have had in mind when they prepared
the Article.
But finaily, and most important. registered tonnage is the only
critenon which tends to further the fundamental purposes of the IhICO
Convention. As stated in Article I (a) of the Convention, one of the
basic purposes of IMCO is "to encourage the general adoption of the
highest practicable standards in matters concerning maritime safety
and efficiencyof navigation".
The IhICO Con\-ention provides the following machinery for the
accom~lishment of this obiective. As ~rovided in Article 24, .he Maritime
Snfrt).' Committcc gcncrates I,rol,u;;<ls for safety rcg-ulationi or for
amendinent~ to esistiiig vÿfcty regulations. As providerl in .-\nicles
22 and 30, the Coniniittee tlieii siibmits tlirse regulations and aniend-
rnzrita tlirough the Council to the .-\~sernbly.wliicli tlien considers the
saiiit:aiiJ Jetermines whetlier or not to recommend tlit.in to tlir \lcmhers
for adoption as provided in Article 16.
The basic purpose of Article I (a) is achieved when such regulations
are generaliy adopted with respect to shipping. Conversely, the purpose
is not achieved with respect to any shipping until the respective States
of registry adopt the regulations. Only the flag State can make the
recommended regulations binding as .o its o.n vessels on the high
seas.
The general adoption of the highest standards of maritime safety
will therefore come about only when the appropriate regulations are
adopted by those nations whicli have legal and regulatory control
over the preponderant amount of the world's tonnage, that is to Say,
the nations with the preponderant amount of registered tonnage. It
stands to reason that the basic objective of general adoption of the
highest practicable standards will be furthered if those nations are the
ones who discuss the proposed regulations in the formative stage and
participate directly in their formulation and promotion. Having in
mind, therefore, the basic objective of general adoption of higher stand-
ards and the machinery by which it is intended that this shall be
accomplished, it is clear that the interpretation of the term "ship-owiiinç324 STATEYEST OF >IR. HAGER (u.s.:\.)-ZS IV 60

nations" \\.hich most furthers the basic objective is that it ineans the
States of registry. A treaty should be iiiterpreted in such fashion as to
further its basic purposes and objectives. In this connection, 1would
refer the Court to its opinion in Repurutionfor Injuries Sttfferedin the
Service of the United Nations, reported in I.C.J. Reports 1949, and
particularly the language at pages 178 through 180.
Accordingly, it is the view of the United States that the "largest
ship-owning nations", as tliat term is used in Article zS(11)of the IMCO
Convention, can only mean those nations with the greatest amount of
tonnage registered under their laws.
Xlr. l'resident and alembers of the Court, the nest point whicli
1 wish to touch upon is the question whether a nation which is one
of the eight largest ship-omning nations is automatically deemed to
have an "important interest in maritime safety" for the piirposes of
Article 28(a).
It is the riew of the United States that this is clearly the intent of
Article zS(n). Let us for a nioment analyse the language of this provision.
In the first place, Article z(a) stntes that "the Maritime Safety Com-

mittee shall consist of fourteen Memhers elected by the Assembly from
the Mcmbers, governments of tliose nations having an important in-
terest in maritime safety, of which not less than eight shall be the largest
ship-owning nations", etc. 1 wish to direct the Court's attention to the
phrase "of which not less than eight". aiid particularly theusord "which".
Towhat does this relative pronoun refer? \I'hen the language is analysed,
it isclear that the \vord "which" can only refer back to the word "nations"
in the immediately preceding phrase reading "those nations having an
important interest in maritinie safety". ln other words, of the nations
having ail important interest in maritime safety, not less than eight
shall be the largest ship-owning nations. Itis clearly the intention of the
Convention draftsmen that tlie eight necessarily and automatically
have ail important interest in maritime safety. If the draftsmen had
intended otherwise, it would have been a quite simple matter to express
tlie thought by adding the necessary <]u:ilif 'ng phi-ase "among those
having an importaiit interest in niaritirne s?ety", so that the amended
provision as to the eight would have read: "of which not less than eight
shall be the largest ship-o\rning nations among those having an important
iiiterest in maritime safety".
Of eveii greater significance, however, is what follows in Articl28(a).
After the phrase "of which not less than eight shall be the largest ship-

oaning nations", the provision continues in this manner: "and the
remainder shall be elected so as to ensure adequate representation of
Alembers..-over~ ~nts of other nations with an imoortant interest in
maritime sifety, ciirlas n;iti~~iiiiiileresIIItlit, >iil>ufI;irl;eiiiiml)crs
of cre\i.s oin tli,. r:irriage of I;irge riiimhcrs of terilii.<l :incl iiiibertlitd
passengers", etc. Again yt is important to note the use of the phrase
"other nations with ail important interest in maritime safety", and 1
wish to draw particular attention to the words "other nations". The
ixovision has alreadv referred to certain nations. and now it refers to
bther nations with aiimportant interest in maritinie safety. Tlie clear
menning of these words aiid this arrangement is that the nations pre-
viouslv referred to also have an irnuortant interest in maritime safety.
And chose nations pre\riously refefrcd to are the largest ship-o\irning
nations. ST.4TEXLESTOF .\IR. HACER (U.S.A.)-28 IV 60
3'25
The Convention draftsmen have thus made it abundaiitly clear, not
once, but twice, that for the purposes of .4rtiele 28 (a) the largest sliip-
owning nations are necessarily understood to have an important iiiter-
est iri iraritirne safety. It is submitted that tliis meaning is too clearly

expressed to be ignored. The provision inust be given effect as written.
Not only is this the inescapable meaning of the language, as stated
above, but it is also eminently logical. It stands to reason that a nat'ion
which has the right and duty to make and enforce maritime safety
regulations witli respect to one of the eight largest merchant fleets in the
urorld necessarily has an important interest in maritime safety. The
possession of power and responsibility with respect tothe maritime safety
of a substantial portion of the world's shipping must connote an impor-
tant interest in the subject of maritime siifety.
As has already been pointed out by the Government of Liberia, it is
significant tliat the Government of the Netlierlands, whicli is iii dis:igree-
ment with Liberia on other questions of interpretation, nevertheless
recognizes in its Written Statement that for eight meinbers, "the fact
of being a large ship-owning nation is mentioned in Article 28 (a) as
indication of their interest in maritime safety", whereas for the otlier
members otlier factors Iia\,e to be considered. such asan interest in the
siil)[)lyof crcws or tlir cnrri;igt: <ifpassengers, and it coiicliiclestliar iis ro
the eigtit, "tlle 1mliurt;lnt iiit~~riiiiiinrilirnr nfrt). tinii II,:ei~iiir'iii~~(l
LI\.tlic. f;ict lliltiov. iiit.iiib.art: tlie 1:irre~t iIii~i-n\vniii~nnt~oni".
1-refer the Court to pages 248 and 252 of theuprinted velum<
1 recognize that tliis particular question has been discussed previously

in both \\'rittenand OralStatements, and 1regret the necessity for having
had to dwell upon it again. However, the matter at issuein tliis proceed-
ing is the proper interpretation of a treaty provision, and it is niost
im~ortant in that connection to consider with ereat ca., the actual
12i;~in~e itself. :incl p.irriciil.irly tlir: pli\r,itrc,spcct tu "iin~rirt:iiii
iiitt:rr:st", siitelias nttracted so niueli çoiiinient
-uite ;iv:irt fruiii rlic uucstiuii irlietticr i.:ttii1.a-cr.t sliii>-oii,iiirir
natioiis ii;czssnri~!. liRriiinporiniit iiiterest in riiaritiiiie wfeti for t~ie
piiri,usc uf .AriicI<S(11).it iscleilriiniiv wrni tlint I.111eri:ind t>:inaiii;i
have demonstrated such an interest in a number of respects. As the
United Stateshasalready mentioned nt considerable length in its \\'ritteil
Statement, among other things these two nations were among the twenty-
eight United Nations Members represented at the first IMCO Assernbly,
they aceepted the international obligations of the Load Line Convention
of 1930and the Safety of Life at Sea Convention of 1948, they participate
in the North Atlantic Ice Patrol, tliey employ highly respected and offi-
cially recognized classification societies, as authorized by regul:ition 6
of Chapter 1, Annex to the Safety of I.ife at Sea Convention, and it is
admitted by al1that their flag fleets are among the most modern in the
world. 1refer to pages 12j to 129 of the printed volume. This is a matter,

however, wliich has already been covered quite thoroughly in the State-
ments of Liberia and Panama, and 1 sh:all not take up the time of the
Court with a further review of the point.
&Ir. President and Members of the Court, 1 would like to discuss,
finally, the tliird question which 1mentioned at the outset of tliis State-
ment, naniely the issue wlietlier tlie Assenibly is required to elect to
the Maritime Safety Committee at least the eight largest ship-owning
iiations, or whetlier it has discretion iri the matter. The Uiiitecl Statescontended in its V7ritten Statement that the Assembly \vas bound to
observe the criteria ofArticle 28and tliat Liberia and Panama should have
been included as members of the Committee for the reason that they were
among the eight largest ship-owning nations, being respectively third
and eighth with respect to quantity of tonnage registered under their
laws, on the hasis of the Secretary-General's list submitted to and made
use of by the Assembly. 1 refcr to pages 122 through 124ofthe printed
voluni:. . -
Itlias, ho\i.e\er, lieeiicoiitendril in ccriain of the othcr \Yrittcn State-
iiients tli;it thc rcqiiiremriit that thc \laritiine S3fety Com~nittecinclucle
not less than eieht of the lar~est shiu-ownina nationsis not mandatorv
upon the Asse~bly, but rather fumisiies o;ly a general directive or
guide. This view is advanced by France, the United Kingdom and the
Xetherlands, among others, and a number of reasons afi given in its
support. 1 refer to pages 29,239and 248of the printed volume, respec-
tively.
The Government of France, for instance, contends that an other
interpretation would make an unofficial statistic the only hasis gr elec-
tion as one of the ei ht members, and argues that these statistics may
not be used against % tates as thongh they were valid legal documents.
It must be pointed out that nhat binds the Assembly is not any particu-
lar compilation of statistics, but rather the basic facts as to which
nations have the greatest quantity of tonnage registered under their
laws. The Assemblv is certainlv free to consider whatever evidence it
decriiî rit,cess:iry;ilid co~ii~ietzniin conliecwitli itdeteriiiinatiori of
these basic lacis. In tliis particiilnr case, the list siihinitted by the Secre-
appears to have heen consrdered hy the Assembly. liurthe;more, thel~iectwhicli
record indicates that the Assembly acted upon this evidence in electing
six of the first eieht memhers which were elected to the Maritime Safetv
Committee. ~herejection of this evidence as to the other two forms thé
basis for the arguments reaardine arbitrarv action which have alreadv
ken made by ziberia anduPanaka.
It is also argued hy France that the choice of the eight members
should he from amongthe largest ship-oxvningnations, or in other words
that the requirement is not mandatory but a general directive. 1 refer
ta page 30 of the printed volume. The most direct answer to this conten-
tionis that it does violence to the language of Article 28(a,hich states
flatly that at least eight of the membersshnll bethe largest ship-owning
nations.
In this connection, it should be noted that in the very same Article
zS(a)of the Convention, but a fe\v lines earlier, where the Convention
draftsmen wished ta express the conception of a choice from among
alternatives. they werequite able ta find the necessary words ta convey
that thought. 1 refer to the words which read "the Maritime Safety
Committee shall consist of fourteen Members elected by the Assembly
from the Members, govemments of those nations", etc. If thc draftsmen
had intended to convev the same conce~tion of choice with resuect to
the eight, they would ;nquestionably have inserted the necessaFy word
"from" for that purpose.
Considerable weight has also been placed in a nuniber of the Written
first appears with reference to the fonrteen members. It is contended in STATEMENT OF &IR. HAGER (U.S.A.)-26 IV 60 327

these Statements that the word "elected" necessarily implics a choice
between alternatives. It is contended that to speak of an automatic
"election" would be a contradiction in terms, and would distort the
natural meaning of the word. It is also contended that, since the word
"elected" im~lies a free choice between alternatives in its second an-
sarily ha\.c tlie s;inie iiicaiiiiig in its earlier nrjt al>peIIIthe Article
\vhere it rcfcrs to al1 fourteen nations. and iniist tlicreforc :iljo Iia\rr.rlie
same meaning with respect to the eight nations, since they are a part of
the fourteen.
It is natural that the use of this word "elected" should have attracted
a large amount of comment, because it forms one of the most important
bases for the attack upon the mandatory character of the requirement
that not less than eight of the Committee shall be the largest ship-owning
nations. 1 would therefore like to add a fewremarks to what has already
been said on this subject.
In the first place. 1would like to point out that, where it first appears
in Article 28 (a), the word "elected" forms a part of the general, intro-
ductory portion which indicates the numberof membersof thecornmittee.
The use of a general opening clause or sentence is of course a common
device in legal draftsmanship. It is logical to present a legal matter by
beginning with the most general statement or proposition possible, and
then ~roceedinn on to the more detailed asDects. After makinn the -
generil st;itcni<nt, tliï legnl drnftsman takcs'up tlie inore suhsidiar)'
matters. in the course of \\,hic11hegocsthrniigli a procrss ofesplanation.
elahoration. <iualific:ition and limitation witti rcsvect to the reneral
proposition'o; statement with which he first began. Now, a general
statement is often necessarily somewhat imprecise. There is a tendency
to make language do double or even multipie duty, with the thought in
mind that the inwitable limitation and qualification to be furnished
by the particular statements which will follow will safely clarify the
meanine of the draftsman. It therefore often ha~~ens..hat broad. un-
qiialifir;i 1;ingiiageused i:igenernl introductory statcment m;iy contnin
possible iinplicntions wliicti :ire not in accord witli tlie exact ineaiiing
interidecl hy the dr:iftsnian. l'hï Oraftsmnn relies iipon the particular
statcments \vliicli \\,IIIfollow to eliminate or block ofi tlieje unwanted
iniplicalioiis :ind tlius cl;irify his meaning. This cominon pr:ictic~.of
draftsrnanship gives rise IO the fiind:imcntal riile of interl~retation of lepl
dociimcnts tliat the particii1;ir jt;itcnient go\,ernsorovzrrides tliegeiieral.
So\v let iis see ti'hat the dr;iftsmeri Iiavt. donc in Artic2s'~.II'l'liey
begin with the general statement:
"The Maritime Safety Committee shall consi~tof fourteen mem-
bers elected by the Assembly from the hfembers, govemments of
those nations having an important interest in maritime safety ..."
If Article 28(a) stopped short at that point, it would of coiirse be
proper and normal to infer that the word "elected" as there used was
intended to express a right frccly to choose fourteen from among al1the
Members of IMCO. However, Article 28(a) does not stop there but
continues on to describe in particular detail the composition of this
Committee and the qualifications for membership in it. In doing so, it
divides the Committee into two separate categories of members. Thevery
firstparticiilar statement wliich follows the general statement as to the 32s STATE$IEST OF &IR. HAGER (U.S.A.)-28 IV 60

foiirtecn rvliich I ti:ivc )ust cliii>tedsIIItlieiira of tIi1:sct\i~ocatcgoriçs.
This is tlic phrasc \ihicli rcads. "of wllisli iiot 1t.i~tlinn riglit shall1111:
largest shi11-o\viiiiigiiations". 1It.r~ is tlic fir1i:iticiil;ir Iiiiiitatioii oii
the genetil statement that the Committee is to consist of fourteen
members. It creates a category of not less than eight meinbers of the
Coinmittee and clcarly states of what members that class shall consist.
The possible implication ilowing from the first use of the word "elected".
that al1 fourteen members of the Committee may be freely clected from
among al1 the hlembers of IMCO, has thus been eliminated, sl>ecifically
and intentionally, by tliis first particular condition in Article 28 (a).
It is submittcd that it would be contrary tu al1 normal and natiiral
rules of interprïtatioii of legal documents to permit a possible impli-

cation of a word iised in the more general part of a legal l>rovisioii, to
override the clcar lariguage of a subseqiient particiilar statement of
limitatioii. To let the implications of free choice iiiherent in the word
"elected" ovcrride the specific limiting phrase "of which not less thari
eight shall be the largest ship-owning nations", woiild be clearly to
frustrate thc piirpose of the draftsmen of Article 28(a). It would arnount
to sa vin^ that the normal wav of leeal ,.aftine should not have beeii
fullr>U.,<l:niidt1i:it 8,iaciii,rd 1i:iIitwiipiit do& oii ~xi~wr itij :II"1)-
solutc:ilid carIILITT IIC<[<rnli!icdr linlitctl J)!~ai,!~r1wi.d .~IIJ>SC~I!L.I,~J).
in tlic i>rnvisioiior dociimciit. It 15 ttit-r<!lor,.siihiiiittctl tliat tlic \i.ord
"eiected" wiiere it first appears in Article 28 (a) is iiot intended to and
does not confer unfettered discretion upon the Assembly in coniiection
with the eieht.
llr. I'resident ;irid l1ciiil)er.sof tlie Court, soinï iiitcrcitiiig argiiinents

Iiavï alio bccii advanced u.hicli seek todrmunstrlitc tlint a yractize of
frrc. clioicIIIthe clcctioii of the (:niincil iiiidcr :Artic1; iiidicatcs tliat
the same practice may properly be followed under Artide 28 (a). 1 feel
that this contention has already been most ably dealt with in the Oral
Statement of the Government of Liberia, and so will not address myself
to that point, but 1 do wish to take this occasion to Say something else
on the siibject of Articles 17 and 18. 1 think that these Articles are
relevant to the coiitention of the Govemment of Xotway that it noiild
be strange if the word "elected" were used in one andthe same sentence
of the Convention in two different senses. 1 refer to page 243 of the
~rinted volunie.
It will be reinembered that Article 17 provides that the Council of.

1hICOshall consist of sixteen members and shall be comvosed of:
(a) six governments of nations with "the largest interest in providing
international shipping services",
(6) six goveniinents of other nations ivith "the largest interest in
international sea-borne trade",
(c) two governmcnts of nations elected by the Assembly froni among
thosc having "a substantial interest iri providing iiiteriiational
shipping services", and

(d) two governments of nations elected by the Assembly froni arnong
tbose having "a substantial interest in international sea-borne
tradc".
Article 18 provides tliat, at a reasonable time before each regular
session of the Assembly. the Council shall determine. for the purpose of

Article 17 (a), the nations ivith the largest rnterest in providing inter- STATE3lEST OF AIR. HAGER (U.S.A.)-28 11' 60 329
national shipping services, and for the purpose of Article 17 (c), the
nations having a substantial interest in providing such services, and, for
the purpose of Article 17 (b), the nations with the largest interest in

international sea-borne trade.

liaviiig :Iiiii~stnritialiiiti.r~.;tin ~iruvidiiiguitcrn3lioitnl sliilqing services.
'h n111 I I iiiiiti:\rriclr rS, qliirr: I;iir.itillydc~er1ti:iuiily
six nations had the larrest interest inurovidinv international shiuuini
services,for the purposëof 17 (a),and th& determine that onlytwÔ;th&
nations had a substantial interest in providing such services, for the
purpose of 17(c). Yet Article 17(cl clearly provides that two of the Council
shall be "elected" by the Assembly from among the Governments of
nations having a substantial interest in providing international shipping
services. There is no provision that the Assembly can go outside the
group of nations nominated bythe Council. In the event that the Council
were to determine under Article 18 that only two nations had a sub-
stantial'interest,the Assenibly would under Article 17 (c) be lirnited to
the election of just those two nations. There would in such case be no
freedom of choice or1the part of the Assembly. Although this is a per-
fectly lawful possibility, it should he noted that Article 17 (c) never-
theless thus uses the word "elected" to describe both the normal situ-

ation of free choice and also a possible situation where there may be no
free choice at all. Article 16 (d) similarly uses the word "elect", in the
phrase which provides that one of the functions of the .4ssembly shall
be "to elect the Members to be represented on the Council, as provided in
Article 17, and the Maritime Safety Committee as provided in Article
28". It is submitted that the words "elect" and "elected", as used in two
places in the I&ICO Convention with reference to the election of the
Council, therefore necessarily compreheiid a possible situation where
the Assernhly will have no alternative choices whatever. In that situ-
ation, the freedom of choice will have been denied the Assembly just
as effectively by the Council as the phrase "not less than eight shall be
the largest ship-owning nations" denies it tothe Assembly under Article
zS (a). Here, therefore, are other examplcs in the very same Convention
of the use of the word "elect" to refer to what may be, as Liberia has so
aptly termed it, a process of "collective identification".
On careful analysis, it therefore appears, both for the reasons which
1 have already stated and those given in the previous Oral Statements
of Liberia and Panama and elsewhere, that the phrase "of which not less
than eight shall be the largest ship-owning nations', was clearly intended
to impose a mandatory requirement upon the Assembly.
This should not be taken as a capricious act of the Convention drafts-

men. Clearly, if one bears in mind the fundamental ohjective of Article
I (a) of encouraging the general adoption of the highest practicable
standards of maritime safety,and the fact that those standards can be
made binding upon a vesse1 only througli their adoption by the State
of its flag, and that adoption by the States with major quantities of
reeistered tonnaee therefore amounts to eeiieral ado~tion. then it is
ob\ious that thehandatory character of the requirernént iS not fortui-
tous, but deliberately calculated to insure, so faras possible, the accom-
plishment of the hasic Convention objective referrëd to.
23330 STATEJIEST OF )IR. H.GER (U.S.A.)-28 1\.60

In connection with this point that therc isa mandatory requirement as
to theeight, 1 would like to refer the Court toits opinions in Conditionsof
Admission of a State 10Membership iit Ille Uttiled Nations (Article 4
of the Charter), I.C.J. Reports 1947-1948, page j7, and particularly
pages 63and 64,and in VotingProcedure and Questions RelntingtoReports
and Petilions Concerning the Territory of South-West Africa, I.C.J.
Reports 1955, page 67, and particularly pages 76 of the Court's opinion
and 82, 85aiid 108 of the separate opinions.
There are a iiumber of other reasons why the Coiirt sliould conclude
that the hlaritiine Safety Committee elected on January 15, 1959. is not
constituted in accordance with the IMCO Convention. Since they have
already been covered most thoroughly by Liberia aiid Panama and also
in various of the Written Statements, however, 1 shall omit any refer-
ence to them at this time.
To concliide, it is theview of the United States,
first, that the "largest ship-owiiing nations", as that term is used
in Article28 (a), are the nations witli the largest amounts of tonnage
of shipping registered under their laws;
second, that those nations are autoniatically deemed to have an
'important interest in maritime safety", for the Iiiirpose of Article
zS (a):

third, that Article28 (u) imposes a diity on the IMCOAssembly to
elect as members of the Maritime Safety Committce of 1hlCOthe eight
under their laws;e largest amounts of tonnage of shipping registered

fotrrtk,that since Liberia and Panania werc at tlie time of the elec-
tion of the membersof the Committeeon Janiiary 15,1959,respcctirely
the third and theeighth largest ship-owning nations fromthe standpoint
of registered toiinage, they were entitled to be elected as inembers
of the Committee;
fiflh,that since they were not so elected, the Committee is not
constituted in accordance with the 1MCOCoiivention; and
sixth. that tlie answer given hy the Court to the question put to it
should be in the iiegative.

1donot know, hlr. President, whether tlie privilcge will be granted to
any of the Xations here represented of niaking a second statement, and
I do not know, if that privilege were to be granted, whether the United
States will find it necessary to do so; but, if any siibmission or reser-
vation miist bc made at this time in that connection, 1should like to be
coniidered as making it on behalf of tlie United States and I think I
may speak for Liberia and Panama on that basis.
In clodng, Alr. President and Xlembersof the Coiirt, 1 wish to express
my appreciation for the patient consideration which you have accorded
my Oral Statement. Thank you. 6. EXPOSÉ ORAL
DE hl. LE PROFESSEUR RICCARDO MONACO

(REPR~SENTAN DTU GOUVERNEMENT ITALIEN)
AUX AUDIENCES PUBLIQUES DES 28 ET 29 AVRIL 1960

[AurZieszcePublique du 28 avril 1960mutin]

Qu'il mc soit permis, Monsieur le Président, Alessieurs de la Cour, de
vous exprimer les sentiments respectueux du Gouvernement de la Répu-
blique italienne et de vous dire comhien j'apprécie l'honneur et le grand
privilège qui me sont réservés decomparaître aujourd'hui pour la pre-

mière fois devant vous en ma qualité de représentant du Gouvernement
italien.
Monsieur le Président, hlessieurs de la Cour:
Il ne nous apparaît pas inutile,il début de notre exposé, d'évoquer
rapidement les phases de la procédure qui a étésuivie par l'Assembléede
I'IhlCO en ce qui concerne la question de droit dont la Cour est actuelle-
ment saisie. Voilà pourquoi nous nous permettons de faire certaines
remarques, qui d'ailleurs ne doivent pas être interprétées comme des
critiques adressées aux institutionde l'IMCO.
Xous savons bien que d'après l'opinion unanime de la doctrine et de la

iurisvrudence. on reconnaît au'il avvartient à la Cour internationale de

Et nous ne contcstons nullement Ceprincipe.
Il y a lieu cependant de rappeler que l'Acte constitutif de l'11lui-
mème contient des dispositions particulières, ayant pour objet l'inter-
prétation des clauses de la Convention. Il serait alors peut-êtreopportun
de voir si et dans quelle mesure les règles d'interprétation de caractère
particulier doivent êtreprises en considération.
L'article55de la Convention vrécise«ue tout différend ou one toute
question suÏiisisçantà propos de ïinterpritatioou de l'application de la
Convention est soumis à l'Assembléepour rè~lement ou régléde toute
autre nianière dont les parties au difféiend seraient convenùés.

Ce n'est qu'au cas où l'on constate que la question ne peut êtreréglée
par l'Assemblée elle-même, oii bien eayant recours à d'autres systèmes
de règlement, que la question est portéepar l'organisation par-devant la
Cour internationale de Justice pour avis consultatif.
A ce propos on pourrait se demander si la question d'interprétation a
dCjà étésoumise à l'Assemblée, sans que celle-ci soit parvenue à une
solution. En tenant compte de ce qui s'est 'passé l'année dernière,lors
de la première assemblée de I'IMCO, on pourrait mêmeavoir certains
doutes à cet égard. Mais ces doutes n'ont aucune influence surla comvé-
tcnce de la CGur, comme nous l'avons déjà soulignédans notre exposé
écrit. (Livre jaune, pp. 225-226.)
Dorénavant, si vous me le permettez, Monsieur lc Président, je dési-
gnerai comme n livre,jaunB le volume imprimé qui contient les exposés

écritsdes différentsEtats. En rFalité, le problème de demander à la Cour inteniatioiialc de
Justice un avis consultatif avait déjàétésoulevéavant que l'Assemblée
ii'adopte le projet de résolutiondu Royaume-Uni, à la suite duquel elle
procéda i Iélection des huit membres du Comitéde la Sécuriténiari-
time.
En effet - et nous reprenons le texte tel quel qui figureà la page 13
du livre iauue - le rewésentant du Libéria. à la huitième séancede
l':\wcinl>iée.IcIj jnri\.icr 1359, ~>resceiiralt!iii,.nt iiiie iiiotiun aux fiils
dc suiiiiiettrc A la (:out iiitemationale de Jiistice iinc demande d'a\,is
coiisultntif. portant siir Ici points de sivoir si le ronn:deejauge briite
iiiimatriculé constituaitIc critCreà al>pliqiierpour déterniiiier I'iiiipor-
tancc de I;iflotte de comnierce d'un uavs doiiiié.en vue dc.I'Cleçtiondes
huit pays qui possèdent les flottes de Commerce les plus importaiites,
lation au nom d'un ressortissant d'lin pays donné constituait le critère
approprié. Dans le cas d'une réponseaffirmative à l'une ou l'autre des
questions et en tenant compte du fait que, selon le premier critére, le
Libériaviendrait à se placer au troisiémerang et le Panama au huitiéme
rang, l'Assembléeaurait-elle le devoir d'élirele Libénaet le Panama ail
Coiiiitéde la Sécuritémaritime?
La motion du Libériadonna lieu à uii débat,à la suiteduquel le repré-
sentant de ce pays déclara qu'il introduirait ultérieurement ça motion,
sous la forme d'un projet de résolution. Le vote de l'Assemblée poiir
l'élection des huit membres étant, entre temps, intervenu, le représen-
tant du Libéna rése entalin .ro,et de résolution aux termes duauel
I'A*seml>lSd ecçiderait (le souiiietlàe la Cour. pour avis consiilratif. 1t.s
poiiirs de droit solile\.6^îpar I'interpr$tatiuii <leI';2c6de la Conveii-
tiorict de charrcr la Commission iuridiauc dc I'Ajseinl,l&cdc forriiiilcrles
questions à poier à la Cour.
Aprèsque la Commission juridique eut examinétank la résolutiondii
Libéna que les amendements introduits par d'autres Etats, on parvint
à la formulation des poiiits faisant l'objet de la demande d'avis consul-
tatif.
L'Asseinbléede I'IMCO.lors de sa onzièmeséance.tenue le 18iaiivier
1959, adopta un projet derésolution commun du ~ibéria,du panama et
du Royaume-Uni. quiest précisémentcelui par leauel la Cour a étésaisie
de la demande d'a&$ coniultatif.
C'està travers cette procédureque la question de l'interprétation de
l'article28a ététraitée au sein de l'.Assembléede I'IIICO. Ilais cette
procédure mémedémontre qu'il y a eu tolite une sériede rotes et de
discussions sur la question, sans que, par contre, l'Assembléeait tàché
de les résoudre. Effectivement, le Gouvernement du Libéna a peiisé,
dèsle premier abord, qu'il y avait lieu de saisir directement IaCour inter-
iiationale de Justice sans appeler l'Assemblée à trancher la question
d'interprétation. D'autre part, on pourrait douter qiie l'Assembléeait
decidécette question lorsqu'elle a procédé à l'électiondes huit États,
puisque, en effet, l'objet de la décisionde'Assembléen'était pasd'inter-
préter l'article28, mais bien d'élireun certain groupe d'États comme
memlxes du Comitéde la Sécurité maritime.
'Toiitcela est prouvépar le libellémêmede la Résolutionde I'Assem-
I7lée.qui dit:
<iConsidérantque l'interprétatioii du paragraphe a) de l'articlZS
dc la Coiivention portant créationde l'organisation intergoiiverne- mentale consultative de la navigation maritime a donné lieu à des
diveraences d'ouinion.
~oGsidérant que la convention, en son article 56, dispose que les
questions de droit peuvent êtreportéesdevant la Cour internationale
de Justice pour a<is consultatif in,etc

En d'autres termes, l'Assembléen'a pas déclaréformellement qu'elle
n'a pu réglerla question de droit et que, par conséquent, elle se voit dans
l'obligation de la porter, conformément à l'article 56 de la Convention.
devant la Cour, mait toiit simplement qu'il existe une interprétation
de l'article28 qui a donné lieu à des divergences d'opinion, ce qui ne
coïncide pas avec la constatation de l'impossibilité. pour l'Assemblée,

de parvenir à un règlement.
3lonsieur le Président, Messieurs de la Cour, voilà donc pourquoi on
pourrait mêmeestimer que le recours au système prévu par l'article 55
de la Convention est touiours iiossible. car en effet l'Assembléen'a vas
encore étésaisie, à,proprémenf parler,'du différend qui concerne 1'in;er-
prétation de l'article 28.
Nous ne savons pas sila Cour voudra se pencher sur les co~isidératioiis
de procédure que nous avons faites tout à l'heure; mais quand même
nous avons cru de notre devoir de signaler à la Cour lesdites particu-
larités de procédure. A part cela, nous sommes sûrs que tous les Etats
intéressés souhaitent que la Cour veuille bien trancher ce différend
d'interprétation, à la solution duquel les organes de l'IMCO ont déjà

apporté une contribution considérable. Et mêmesi la demande d'avis
consultatif a étéformuléeen dehors de la procédure expressément prévue
à cet effet par les articles de la Convention, il est bien sUrque la Cour peut
toujours connaitre à titre consultatif d'une question concernant l'inter-
prétation d'un accord international,
Après les remarques de caractère préalable que nous avons faites tout
à l'heure, nous devons aborder les différents points qui ont étémis en
évidencepar l'analyse juridique très approfondie résultant des différents
exposés écrits qui ont étésoumis à la Cour.
Nous ne prétendons pas considérer ici tous les problèmes qui tou-

chent au fond de la question. Les représentants des autres États qui me
suivront à cette barre apporteront à la Cour des élémentsplécieux.
Nous voulons essentiellement élucider les problèmes d'interprétation.
11est hors dedoute que le passage le plus important de l'acte instituant
I'IMCO, sur lequel la Cour devra porter son attcntioii, est celui qui
figure à l'article 28 a), dorit le libelléest le suivant:
uHuit au moins de ces pays doivent êtreceux qui possèdent les

flottes de commerce les plus importantes; >,
En ce qui concerne l'interprétation de cette phrase, on doit reconnaitre

que presque tous les arguments possibles ont étéavancés et dévelqppés
de part et d'autre, dans les exposésécrits établispar les différentsEtats
intervenusdans le débat. Mais on sait également que l'analyse juridique
ne connait vas de limite et aue la recherche tendant à la bonne interuré-
tation d'un texte est presjue inépuisable. De plus, il faut souligner
q.'.l y a lieu ici de corri.er certaines interprétations moins correctes du
11:1,':1g(.IIqiicstron qui un1 61' ~1iiiiii;{.tircrrrtiiiis 1it;iti.
I)'n[jr;.lis i.ririrts iI'i~itcrprCr;~tioiiiiii<.<,ildoil .idnierrrv <ILI<1's
il~r II r i rit, I I 111nt le ut po.:>Cdcnr .,de ])ri-334 EXPOSE DE ar. MONACO (ITALIE) - 28 IV 60

féreiice à n'importe quel autre terme {lui aurait pu êtreadopté pour
formuler les idées à exprimer par l'article 28 a), ont certainement eu
des raisons valables.
Cela, par contre, ne semble guère avoir d'importance aux yeux des
distinguésjuristes qui appuient les raisons du Panama et du Libéria.
A la page 179 du livre jaune (exposédu Gouvernement du Panama) on
lit que d'après la pratique et les usages généraux, ship-owiiig ?ratior&s
signifie les Etats soiis le pavillon duquel les navires ont étéenregistrés;

et, à cet égard, on cite la décisionde la Cour internationale de Justice
inhérente au cas du Carrul de Corfou.A vrai dire le passage évoqiién'est
aucunement décisif. car il se borne à dire aue les uavillons des navires
:i).aiit irai.ers1,c:iiinl iorii <Ictcll~oi<It1t~llc;iiitr~.'iiniiorinoii iiiitiiz
qii:ils battent le p;i\,illoii dc la (;r6cc. dr I'ltalic. <Irla Koiininiiie. cic.
I:t:tnt doiinl' quc d:ini Ic,mi'rnoire du i':in:~ni:iainsi <~ii"'I~njcvllii dii
1.1I)Cria011 pI:tcv tr&ssuiivv~itbur lc IIICI~C plan l;in:ition~tIi~C1';tpl~:irtc-
nniicc, In lirupribi;. rt le l~;ivillundcnavires. noils citiiiiun, rlii'il cst toi~t
d'nl>oi.cliiCcess:iire d'Ci:ihlir :,\cc toiitt. clart; In .iiciiiticntioii deccs

..
En ce qui concerne la nationalité on dit très soiivent qii'ell? dépenddu
uavillon. c'est-à-dire Que tout navire a la nationalité de i'Etat dont il
bat le pavillon; et cpe'le droit de battre tel ou tel autre pavillon dépend
à son tour du lieu d'enregjstremeiit du navire. Mais le fait que le navire
ait été enregistrt par un Etat et que, par cqnséquent, il puisse battre le
pavillon de cet Etat, ne signifie point que I'Etat en question possède le
navire, ni qu'il exerce sur celui-ci un droit de caractère réel.
La notion de nationalité des navires est elle-même assezcontestée.
D'après une doctrine à laqiielle ne manque certes pas une autorité bien
reconnue, on établit une distinction très nette entre le droit de pavillon

et la nationalité. Cela, parce que l'on considère que seules les personnes
physiques possèdent une véritable nationalité, tandis que pour les
personnes morales et les communautés de choses, il est bien plus difficile
d'aboutir à une idée équivalente h celle de la nationalité. Voilà donc
poiir<liioioii dit(111~IL<l'oit dc ~>nvilloi i'I 1ii;iriunalirl. dv; ii;i\.i<<iiir
~L.IISCIIU~C ~SII~IIIILI~C.;i.IV l).i\.~IIiip~iifii(III'IIhnicnii 3 <t& iiniii:i-
tri~iil,~d311stiri~)a~id<:tiri~ii~iC ;C (liiiioiisI.<:III~Cd':iililii~ttriiiic(lx
ces notions sanç l'autre. parce qii'elies ne se Commandent pas inutuellc-
ment .

En résumant cette doctrine par les mots memes employés par I'iirde
ses représentants les plus éminents, le iirofesseiir Xiboyet (voir l'article
iiNavires de mer »insérédans le Répertoirede droitintem~rtio~zu lolume
X, 11. IO), nous pourrions dire que la «nationalité des navircs signifie
qu'ils sont rattachés par leur enregistrenient à un certain yays, qui
exerce siir ciix ses droits de souveraineté, à la protection duquel ils otit
droit, enfin par la loi duquel sont régis les divers faits sr produisant à
bord durant le voyage et qui s'applique pour de nombreux conflits de
lois 1,.
Coinme on le voit très aisément, rien dans les idéesqui d'après Niboyet

sont contenues dans la conception de nationalité d'on navire ne se
réfère à la propriété,ail droit sur le navire lui-même.
En tout état de causc, il faut reconnaître que quand on parle de
nationalité d'nn navire dans le domaine du droit international, car vrai-
ment ici il s'agit de confronter la situation igrid'ique d'un navire par
rapport au lien qiii le rattache à l'un ou i'autre Etat, on ne peut pas suivre ESPOSÉ DE 21. >IOSAGO (ITALIE) - 2s IV 60 333

les idées sur les<liiellcsest bâtie la notion de natioiialité d'après la loi
interne.
~--~~-u~ ~ ~P~ésident. Messieurs de la Cour. sur la base ce de oui
précède,on peut vraiment affirmer que les navires n'appartiennent pas
aux biens de I'fitat dii point de vue international. Quand un Etat confère
son pavillon à uri riavire, il indique ce navire comme lin objet tombant
sous le coup de ses lois internes. En d'autres termes, il crée un lien de
caractère formel et piiblic entre son système juridique et le navire en
tant que celui-ci apparaît comme une communauté qui se dé~laced'un
endroit à un aiitrc. Tous les rapports qui surgissent entre un Etat et un

navire par le fait qiie le sccond a étéenregistré par le premier sont donc
des relations de caractère public se référant aux différents poil\-oirs
qui, d'après les lois dii lieu d'enregistrement, appartiennent aux autorités
publiques à Ir&garddu navire. Rien donc qui puisse demontrer que de
l'enregistrement il découle lin droit quelconque pour I'Etat à considérer
le navire comme sa propriétéou, tout au moins, à exercer sur lui des
droits de caractère réel touchant au domaine des faciiltés qui appar-
tiennent au suiet vrivé.
Nul ne contést~<li~ctout État a le pouvoir de fixer par sa loi interne,
sous réserve des limites exigéespar le droit international - je tiens à
souliener cette limitation =. les conditions auxtiuclles un navire neut
,.
Ctrc 1iisi.ril~1.~11~SCFprOI8rrjrvgliilt a. 11~(rjiit fort soi~~laii:!~li~~IIc dcj
iiilhrti iiiiifurmcj fiisjc.iil rccuiiniii a cct Cg:irdp:ir iuiis 1trt;il~ qiii oiit
drs inr2rl:ts ~irE~~o~idér:int~IaniIc duiii;iiiic <I< :n iiiarine m;trcliaridt::
cela pourr:iii Uviter hien des conflit, dc lui qiii se 1)rodiiisenr t.ntrt7 li.5
diii;rcnti >!.jti:riiesjiiridiqiics ct dont I;isoliitioii sc Iiciirtc trc'ssoiivcn:i
(1,s~lilliciiltcscoiisidCr:il~lr.. t:lnrecoiiiiii. il faut toiir dc.m;ini. :iiliiivtrr<.
que les différenteslegislations nationales,en établissant un lien de carac-
tère r>ublicentre I'Etat et le navire, par le fait de l'enregistrement et de
la côncession du droit de battre paGllon, ne touchent I>aset n'ont pas
intérêt i toucher à la propriétédu navire. II s'agit en effet de deus

domaines bien différents: celui qui se réfèreaux pouvoirs piiblics de
I'Etat du pavillon et celui des droits privés s'exerçant directement sur
les navires. Nous en avons la meilleure preuve dans le fait que des étcan-
gers sont admis à inscrire les navires de leur propriétéauprès d'un Etat
différent de ccliii de leur nationalité. comme c'est i)récisémentle cas
1~1irles 1;titijgliiwiit I,I~.I~Iispt,;ésii ltlaccr soi15Iciir l~;~\~iIl~iiii~t\,irc.>
<It ~>ro~)nétC C::tv~ngr\r~.I..ï> id.,:. <I,i<liffCrt,riisErats ;icct ;.g;~rJ,uii
Ir sait. s'i.loi~'nciitcoi~sidi.rnhlt-invnt11:siines des niitres. II est des Etats
pour l&squel;l'enregistrement des navires n'est possible qiie si la pro-
priétéappartient entièrement à leurs propres nationaux, pour d'autres,
il est possible que des ressortissants étrangers participent~dans,une cerT
taine mesure à la propriétédes navires. Enfin, il y a d'autres Etats qui

admettent l'eiiregistrernent et la concession de leur pavillon mrime pour
des navires dont la r~roi~riété est entièrement étrangère. Dans cette

le cas où aucune condition i~articulière n'e.t.imi~oséeaux propriétai.es .
(1,;iiari~,ii.~Ii?trt,iigGr~;.1';~r qiii prti:tlt.IIOIIScro!.uns ~,vuircIC.ii,itrC
siiffis~imin~iitqiic Iciii:itiuiiaIiiCdi! ii:ivii< ri'a r!I !,CII~ :i!,l:i 1br~~pri:ic
dc ivlui-ci. iiiic. iniitlis ~iiicla ~iariniinlit:xl>riincun Iiciide druit i~iit~lis
établi entre l'État et le navire, la propriétédemeiire une iiotion dé droit

privéet ne dépasse en aiicuii cas les limites du système juridique nationalde l'État intéresséet qui, par conséquerit, lie peut êtreprise en considé-

ratio11par le droit international,
Les Etats qui s'opposent à iiotre thèse font découlertoute une sériede
conséquencesde la loi en vigueur dails le lieu où le navire est enregistré.
Par exemple, à la page 44 du livre jaune - exposé du Libéria - on
affirme que la loi du lieu d'enregistremeiit vaut comme loi du navire;
en outre. aue 1'Etat d'enregis-rement a une iuridiction urédominante
sur les navires battant son propre pavillon. NOU ne cont&toiis aucunel
ment ces résultats, étant donné qu'ils sont universellement admis et
aue. d'autre vart. ils n'anvortent aucune vreuve suscevtible d'étendre
& domaine déla ioi du {akillon à des relafions dont elfe se trouve être
exclue; il s'a& ~récisémentdes relations entre 1'Etat et le navire en tant
que celui-ci n'cit pas seul~ment soumis à la loi di1 pavillon, mais qii'il

doit aussi appartenir à 1'Etat. C'est précisémentce que veut exprimer,
à notre avis, l'article 28 a) lorsqu'il emploie le mot npossèdent »: nous
avons déjà dit que les rédacteurs de l'article n'ont pas choisi ce mot par
hasard. 11est évident que, pour exprimer une idée différente de celle
qu'on peut naturellement attrihuer à ce terme, ils auraient bien pu
utiliser d'autres expressions très faciles d'ailleurs à. formuler. Comme
l'indique très justement l'exposé écritdu Gouvernement suisse, livre
jaune, pagc 217, ils auraient pu adopter à la place dc la formule cipays
qui possèdent les flottes de commerce les plus importantes r celle de
«pays qui ont sous leur pavillon les flottes les plus importantes » ou
n'importe quelle autre phrase d'une signification semblable. Au contraire,
le fait qu'ils aient choisi parmi toutes les expressions utilisables une
expression tellemeiit concrète comme celle de cpossèdent »démontre très
clairement que leur intention a été de signifier quelque chose de bien

différent de l'enregistrement ou du pavillon. Xous savons très bien qu'on
ne saurait avancer l'idéeque, d'après l'article 28 aj, les navires devraient
êtrela propriétéde I'Etat lui-même, maiscoinme, dans le langage usuel,
on entend par «navires de tel ou de tel autre Etat 1les bateauxapparte-
nant à ses ressortissants, l'interprétation la plus logiqiie du terme est que
l'article 28 a) exige que le navire appartienne à des propriétaires ayant
la nationalité de ce mêmeEtat.

constitut;f de I'IMCO, afin .de désigner certains groupeS d'~tats qui
doivent êtrePris en considération Dour la com~osition de ses différents
org:iiic;, arIopt(IrscriiC~<-1>1;:s\,~ri?l>lt111irii~IICII~cas, II?;tr6fCrt III
plus i I'idA:SICIA \jr,,\~ri<~1t.i~~virv<\.'uih ~I,IIIIr5r<fvr,II,.*.:.I?ii fi,.^,

Ir, r:ii 6-liiniiIn iniictiiiiiior(1,l'l.!l('O ci>ii.;irfCrr:
1) Les pays qui sont le plus intéressés ou qui ont uii intéret notable
(art.17 cj) à fournir des services interiiationaux de navigation mari-
time (art. 17 a));

2) les pays qui sont le plus intéressésou bien qui ont un intérêtnotable
(art. 17d)) dans le commerce international maritime (art.17b));

3) les pays qui, comme nous le savons, ont un intérêtimportant dans
les questions de sécuritémaritime (art. 28);
4) les pays dont les ressortissants entrent en grand nombre dalis la
composition des équipages (art. 28 encore); et enfin, les pays qui sont intéressés au transport d'un grand nombre de passagers de
cabine ou de pont (encore art. 28).

Xous voyons donc que jamais oii ne fait de référence au toiiiiage des
différentes flottes nationales, ete le lien qui s'établit par I'enre~istre-
ment n'entre jamais en ligne decompte enAcequi concérne les cRtères
utilisés aiix fins que nous venons d'indiquer.

[Audience publique du 28 avril1960, après-midi]
3loiisieur le Président, Messieurs de la Cour, les gouvernemelits qui
contestent la validité de l'électioneffectuéepar l'Assembléede l'lhlCO
invoquent très souvent à leur appiii les procidures qui se sont déroiilées

ail sein de la Conférencede 1948- Conférencede Genève - qui adopta
l'acte constitutif de I'IhfCO. Mais ces citations ne sont pas toujours de
natiire à apporter dcs élénientsutiles à la thèse qui s'oppose à la nôtre.
Par exemple, on lit à la page ISOdu livre jaune -exposé du Gouverne-
ment du Panama - que, pendant la Conférence de 1948, lorsqu'on a
décidéde former un deuxième groiipe de travail chargé d'examiner les
matières relativesà la séciiritémaritime, le Panama ne fut inclus dans
ce groupe de travail qu'après une forte protestation et après que la
délégation panaméenneait menacé de se retirer de la Conféreiice.A ce
moment-là, le Panama était classé à la cinquième place en raison du
tonnage enrefistré sous son vavillon. Alais cette circonstance ne fut Das

qui, tout en ayant sous leurs paviiions;in ionnaec infériëiir?Iceid du
Panama, donnaient des garant'ies majeures en matière de sécurité mari-
time et étaient surtout en mesure de contribuer avec plus d'efficacitéà
la solution des questions poséesdevant la Conférence:
Voilà donc que cet épisode,au lieu d'apporter des élémentsen faveur
de la thèse contraire à la nôtre, renforce notre idéeque le tonnage n'est
ni le seul,i mêmele plus marquant élémentquipeut apporter la preiive
de l'importance qu'un certain Etat a dans les questions touchant à la
sécurité maritime.
En concluant sur ce point, nous pouvons bien affirmer aile les aren-
ments avancés par les États qui s'opposent à notre tlièse'nc parvien- -
nent pas à démontrer que l'idéed'ownershifi, ou de propriétédii navire.
correii~ond à celle d'enieeistremcnt ou de 6avillon. . .

hfoi;sicur le l~résident,';~essieiirsde la C~I, nous avons tàchi: de pre-
mier abord de soumettre à la Cour une interprétation de l'article 28 a)
qui nous paraît à la fois logique et corresl>ondant à la réalite de la situa-
tion. Mais, à travers la lecturc du livre jaune, nous avons vu que la
recherche concernant les questions d'interprétation a été j~ousséejus-
qu'aux limites les plus avancées, ce qui nous amène à voir les problèmes
relatifs à l'interprétation de la constitution de I'I&lCOdans un cadre
plus large qiie celui qui touche seiilement à certaines dispositions
concrètes.
Le mémoire du Gouvernement du Panama a fait iin examen appro-
fondi des règles qui régissent l'interprétation des traités; çt nous pour-
rions bien suivre tout d'abord les argiiments qu'il soumet à cet égard à
la Cour. Noiis voyons qu'à la page 175 du livre jaune, ledit mémoire
énonce deux règles généralesd'interprétation qui seraient iiniverselle-
ment reconniies et dont l'Assembléede I'IMCO aurait dîi s'inspirer. La première est la suivante:

« Lorsque le texte d'un traité oii d'uiie loi est clair, inéquivoque et
noii anibigii, ce texte doit êtreinterprétésuivaiit son sens naturel et
usuel, sans qii'on ait besoin d'examiner le traité et la loi dans leur
ensemble. oui bieii de tenir compte d'autres Eléinentsextrinsèques
ayant une connexioii avec le texte Iiii-même,afin de constater
l'esprit ou I'iiitention de la règleparticulière qii'ils'agit d'interpréter. 1,

La deuxième serait conçue de la façon siiirante:

r Si le sens d'une disposition particulière, d'une loi oii d'uii
traité n'est oas clair. ou bien s'il est ainbieu ou éaiiivoaue. il s'avère
- .
iiCi.t.~snir~d:g:coiisidarer noii sciili~iiit~iiItc tr:iitC<III I;loi d:iiis Iciir
<:ii.~cnil>liniiis :iiis;i liicn 1ks.111trt.:~?l~:iii~nrcsxtL:iie~r.. C<IIIIIx<'ii.
;,iii~1'Cr:il~lIii'.i:il,rit et I'iiiiiiiiioii .Ic 1:.r1.11ilii<.;linii.

Nous pouvons reconnaître, en principe, que les deux règles d'inter-
prétation que nous venons d'évoquer soiit généralement appliquées par
la jurisprudence internationale. il serait. par cons&quenf,-superflu-de
citer à l'appui desdites règles certaines décisionsde la Cour et d'aiitres
trihiinaux internationaux.

Cela dit. il faut. ail coiitraire. ètrebien sîir aile le mémoiredu Gouverne-
inmi (IIIlJnii3nia, eii parraiit de I'l~y~~oiIi~ tlc 1,:ic:ste ilc 1';triicIt2S CI,
ci clair. inC~liii\~t,i~iit:itl~o~ir\~iid';~iiitiigiii;ivr:iiiiiciit 1~ts611"~iic;ri~ii
d'iiiir kiioii lucitliic ci currccrt3aii i,oiiii di i.uc iiiri<liiiiie.iili I>icii.c'est

go~~v<.rii;'iiit.i" iii~ic~j~i 11111 i;icl.;. <I':ililwircIciii ci)rirr;l~iiiii>ii.s'<:si
IXI'C'p CrCci;:~iiit.nt<IIII;iit<III': .:',II,de I':irii<:l<: S ii'~.ii].ilsclair CI

qiit' ILIdisl~usitioiifoiidaiiiciitslc dc ~r.1 :irticlc duiiiir Iic~i;i(lis diffiziilt;i
d'interpr;tatioii Soli ~ciilciii(:ntIcGuii\~cri~eiiiciiritnlicii iiialj L:g;ili~iii~~iit
It.5.iiitrt3i gou\~~r~i.:m~iit; 'IIII;~pl,iiian In ,ol~ition d~iiiiC.~ 1i:iiI'.\s,ïni-
blGi,CI<I.'I.\ICO aii i>rohlcnicdc I:ii:oiiiiioaition du CoiiiiiCdc I:ISCciiritS
maritime soiit coniaincus qu'il faut fafre iin graiid efiort d'analyse juri-
dique pour parvenir à établirla signification exacte des mots qui figiirent
dans ce célèbre passagede l'article 28 a).
Voilà doiic qiie si on admet que le sens de l'article n'est pas clair, la

Cour ne pourra tenir c«ml>te de tous les argunients qui sont foiidéssiir
l'hypothèse contraire.
En tout état de caiise. oii iie pourrait jamais affirmcr quela disposition
dont il s'agit est tellement claire qu'il n'est auciinement nécessaired'avoir
recours à des élémentsconnexes ou même extratextiiels. Car si la pre-
mière règle énoncte par le Gouvernement <lu I'anama est en principe
valable, il ne faiit pas se cacher qu'elle a eii dans la doctrine et dans la
pratique d'aiitres lormiilations, peut-étre ineilleures que celle qiii noiis
est soumise par le mémoire panaméen.

ilous pouvons recoiirir à cet égard à I'aotorité de l'Institut de droit
international qui, lors de sa session teniie à Greiiade en 1956, a étahli
nuelle est l'ooération de base à effectuer uiiaiid on se trouve en urésence
d'un texte qui, eii ~>riiicipcp , eut apparaitre clair.
A l'article ~n:rnier de la résolutioii de I'liistitiit concernant l'iritcr-
prétation des 'traités,on lit ce qui suit: a L'accord des parties s'étant réalisésur le teste dii traité, il y a
lieu de prendre le sens naturel et ordinaire des terines de ce teste
comme base d'interprétation. »

Ce qui signifie que, au cas oii le sens du texte est clair, il est qiiand méme
indispensable d'accomplir à son égardune opération d'interprétatioii. En
effet; on sait que mêmeles motgles moinsambigus compoitent souvent

plusieurs significations: il suffit d'ouvrir Ics pages d'lin \,ocabulaire poiir le
constater immédiatement, ce qui est,d'autre part, clairemeiit reconnu par
l'Institut de droit international, qui nous dit qiie les termes du teste
doivent ètre pris comme base d'interprétatioii. étant donné que, par
eux-mêmes, ils ne peuvent pas nous apporter directement I'interpré-
tation dans son entier.
Monsieur le Président, Messieurs de la Cour, la résolution de Grenade
de l'Institut de droit international, une fois posée la règleqiie nous avons

expliquée, indique qiielles sont les opérations qiie l'interprète doit
accomplir, en spécifiant:

iiLes ternes des dispositions du traité doivent êtreinterprétés
dans le contexte entier, selon la boniie foi et h la lumière des prin-
cipes du droit international. P

Voilà donc que, de l'avis de l'lnstitiit dc droit international, le texte,

mêmequand il est clair - ce que rioiis contestons dans le cas présent -,
ne s'interprète pas par lui-même; au contraire, ceiis qiii sont appelés
à en dégager la portée exacte doivent s'inspirer de plusieiirs critères,
c'est-à-dire, premièrement, de l'interprétation systématiqiie - examen
des dispositions dans leur contexteentier -; deiixièmement, dii principe
de la bonne foi, et enfin, et d'uiie façon générale,des principes du droit
international.
Sinous nous penchons maintenant sur la jiirisprudence de la Coiir pour
vérifier dans quelle mesure elle a donné d'importance aii principe de

l'ancien jurisconsulte romain in claris non fit interprelatio, c'est-à-dire à
la règle dii sens clair, nous devons reconnaître que ce 11rincipea ét6
appliqué non pas directement, inais seulement ?Ila suite d'une appré-
ciation logique assez compliqiiée.
Prenons, par exemple, Ic cas classiqiie dii deiixièmc avis coiisultatif
donné par la Coiir sur l'liiterprétation des lr<rilésde paix; c'est l'avis dii
18 juillet 19jo. Il s'agissait d'interpréter les articles 36, 3S et 40 reslxc-
tivement, des traités de paix conclus avec la Bulgarie, la Roumanie et

la Hongrie; ces articles prévoyaient qiie certains litiges soient tranchés
par une commission arbitrale composée de trois ineinbres, dont deus
désignés par chacune des deux parties, et lin nommé d'un commun
accord par les parties elles-mêmes.Aii cas où celles-ci ne tomberaient
d'accord, dans un délai d'un mois, sur le clioix dii troisième membre,
le Secrétairegénéraldes Nations Unies aurait eii le poiivoir de le nommer.
A cet égard, deux questions d'interprétation se posaient: la première
consistant à savoir si la nomination des arbitres constituait oii non une
coii~lition~,r;alnlileafii.ILILIC~cc~OI~I~~:~~1 I~~i.ic;I~III~IIE~solitoiir.

le.rioiiiiiii~. iiiuiiil~ic; In ~I<.iixiiin~rciidniit Ii 6tnl)lii In coniriiiiii<~ii
c~~~i,t~t~i ;cIIvc riil cd,:l'in~tr,IIII(;II ~IS,::rClnirf:~Ci~Cr~ilC.t.~iOII lir,li
identique comme structure juridiqlie :icelle qiii, aiicontrriire, aurait &té
forméedirectement par les parties.340 EXPOS EE 31. >IO+.KO (11~1.1~) - 2s IV 60

On affirmait d'une part que la désignation du troisièine membre aurait
pu iiitervenir seulement après que les parties aient déjà choisi leur
représentant au sein de la Commission. D'autre part on soutenait que
le terme troisième membre contenu dans les articles des traités de paix
indiquait seulement le caractère neutre de l'arbitre devant ètre nommé
par le Secrétaire généralet que,pour cela, sa nomination ne devait pas
nécessaireinent fairc suite à celle de deux arbitrcs nationaux.
La Cour, ayant constaté que le sens iiaturcl et ordinaire des mots
employés était suffisant pour une interprétation s'écartant de la valeur
littérale dcs ternies, se prononça en faveur de la première solutioii.
On voit donc ici que la théorie du sens clair a porté la Cour, non pas
à adopter la solritioii découlant de la portée littérale des termes, mais à

reconstruire, sur cette base littérale, le sens natiirel et ordinaire des mots.
Voyons maintenaiit d'une manière analogue les conclusions auxquelles
est parveniie la Coiir dans son avis consultatif du 28 rnai 1948 sur l'Ad-
tnissiort d'ua litat airx Natioits Unies. Il s'agissait, comme tout le monde
le sait, d'interpréter l'article4 du Statut des Xatioiis Unies, en ce qui
concerne les conditions requises afin qii'un État piiisse être admis à
l'Orgaiiisatioii.
La Cour est parvenue à une interprétation logico-littérale du texte en
questior., en affirmant, entre autres, que le sens natiirel des termes em-
ployés porte à considérer I'énumératioii des conditions d'admission
commc étant l'interprétation stricte et non de caractère eremplificatif.
C'est poiir cela qiie la Cour a pu écarter toulc référenceaux travaux
préparatoires -références qui, évideniment l'auraient beaucoup éloignée

du principe dii sens clair -, et elle a souligné que si las rédacteurs de la
Charteavaient \,oulu reconnaître aux filembres la facultéd'iiitroduiredans
l'application de l'article 4 des considérations oii des éléments différents
de ceux qui y sont exprimés, ils n'auraient pas manqué d'adopter une
autre forinule. Cette coiiclusion peut bien s'appliquer au cas dont nous
discutons eii ce sens qiie si les auteurs de l'articl28 cc)avaient eu I'inten-
tion de se référerail critèredu tonnaee au lieu au'à celui de I'in~borlance
de la flotte, ils l'auraient sans doute é~ioiicd'une manière explic'ite.
Xous vovoiis donc avec quelle saEesse et quelle pondération la Cour a
utilisé le l>rincil)cdu sens Clair, et nous remarquins aussi que dans les
cas évoqiiéstout à I'heiire I'interprétatioii du texte est toujours issue
d'un long travail d'analyse juridique. Ce travail ii'a pas étélimité à
l'examen littéral des termes employés, inais il ;ipris aussi en considéra-

tioii d'autres &lémeritsde la théorie générale de l'interprétation des actes
juridiques, notamment ceux qui se rnpportent à l'interprétation stricte
ou à l'interxétation extensive. Si, devant un tcste donné, on doit
décider s'il aut I'iiiterpréter d'une façon stricte ou bien sur une base
large, on fait qiielqiie chose de plus qu'apprécier la valeur littérale des
termes cmtilov~..~
L'Institut de droit international établit encore un critère très connu
d'iiiterprétatioii:à savoir que les dispositions d'un traité doivent ètre
intervfétées dans le co~~lexl~toutentier.
Soiis croyons \.r:iiriit:iittliic, dans Ic cas ~>rrIIserait trZsdniip-reiis
CC m:nic illogiqiir dc l>rciirlrc I;iplirase: S.Htitr nu ~rtoi~tsiIces
,Lji::~>~re cetir0111noss?.lr~rllcs ~loltisdecbnrnlrrcclcs blrr.3inri>iirl.t~j,cs;
sél~aréiiientdii contexte, c'est-à-dire de la phrase qiii précèdeimmédia-

tement le passage précité. Cette phrase se lit, nous le savons, comme
suit: IILe Comité de la Sécurité maritime se compose de qiiatorze
Mcmhres élus par l'Assembléeparmi les Membres, gouverneineiits
des pays qui ont un intér&timportant dans les questions de sé-
curité maritime. u

Monsieur le Président, Messieurs de la Cour, si nous lisons alors l'ar-
ticle28 dans son entier, comme l'exigent les bonnes règlesd'interprétatioii
et comme le souligne l'Institut de droit international, nous constatons
que le critère de l'aintérêtimportant dans les questions de sécurité
maritime u qui figure à la toute premiere place, apparaît aussi comme le
critère fondamental sur Ieqiiel les autres prévus au méme article s'iii-
sèrent comme une spécificationet un complément. En d'autres termes, la
qualité qu'on demande conime toute première aux Gtats en question et
à laquelle on peut ajouter les autres sans en pouvoir faire abstraction,
c'est cet intérét prépondérant en matière de sécurité maritime.

Nous savons que l'article 28, aprèsavoir indiquéle critère fondamental
et généralqui régit le sens et la portée de la disposition tont entière
visant la composition dii Comité. énonce les critères spécifiques qui
fixent la répartition des sièges. Mais c'est précisément pour cela qu'il
faut reconnaître que tout critère spécifiqueprésuppose le critère général
qui est toujours supposé étre à sa base. La lecture di1 texte dans son
entier nous porte donc à constater que le concours du critérc général
est requisconjointement, car on lie saurait admettre que la scule présence
d'un critère spécifique peut permettre de faire abstraction de vérifier
si lecrjtère généralest rempli. En d'autres termes, il n'est pas suffisant
que l'Etat possède un tonnage grâce auquel sa manne est classéeà la
têtedes flottes marchandes, mais il est nécessaireaussi qu'il aitlin intérét
marquant en matière de sécurité maritime.
La comparaison de l'importance que les différentsÉtats ici intéressés
présentent au point de vile de la sécurité maritime se fait sur la base de

données techniques qui oiit déjà étéexpliquées à la Cour. Mais, eii ce
qui concerne la comparaison entre le Libéna et le I'anama d'un côté
et les Etats élus comme membres du Comité de la Sécuritémaritime
de l'autre côté, qu'il nous suffise de nous référer à ce qiie nous avons
remarqué à la page 223 du livrc jaune.
Nous avons donc constaté que l'interprétation logico-systématiqiie
du texte de l'article 2al noiis conduit à des résultats bien différcntsde
ceux qui nous sont présentéspar les gouvernemeiits qui contestent la
légitimité del'électiondu Comitéde la Sécurité maritime.
Cela mis au clair, il faut encore suivre les autres critères d'interpré-
tation suggéréspar l'Institut de droit international. En ce qui concerne
le principede la boiinc foi. celui-ci date d'une époquetrès ancienne, comme
nous le savons tous, de façon qu'on peut dire qu'il se trouve à l'origine
mêmede la première élaboration du droit international. Il suffit de
rappeler l'Œuvre de Grotius. ainsi que ceUedes auteurs qui se sont ins-
pirés de son enseignement. Voilà donc qu'on peut meme dire que ce
principe d'interprétation n'a pas étédécouvert par I'Iiistitut de droit

international, mais plutôt réaffirmé actuellement, compte tenu de
l'évolution la plus récente des relations internationales.
Qii'est-ce que cela sigiiific, que les traités doivent étrc interprétés
de bonne foi? Cela veut dire que le traité ne peut pas toujours ètre
apprécié d'aprèsla signification des mots qui ont été employés et qu'il
faut parfois tenir comptc dc ccrtains élémentsde caractère siibjectif342 EXPDSÉ DE JI.JlOSACO (1~~1.1~-) 28 IV 60
qui dépassent la valeur esclusivcment formelle des dispositions du
traité.
Voilà donc que, en suivant cette métliodc, l'interprète sera ameiié à
nier I'iriil>ortanceprédominante de l'élément formelou. tout au moins.
à balancér ce dernier élémentavec l'élémciitusvcholoeiaue de la bonne
foi. Cela, évidemment, dans la mesure où ;iie rec<&che de raisons

soit vraimentesi~ossible.onduit les parties à la stipulation di1 traité

11faut reconnaître, en tout état de cause, que le domained'application
du critère de la bonne foireiicontra des liniites assez restreintes en ce qui
coiiceriie l'interprétation des actes constitutifs d'organisations inter-
nationales, cela pour une rais011qiii me parait très simple. Tandis que
dans les accords bilatéraux il y a olq~ositioii d'intérrts et de voloiités,
ce uui amène varfois les oarties à s'écarter d'une coiiduite tout à fait
loyile, dans les'actes qui d'onneiit vie à des organisations internationales.
nous iic sornmes pas en présence de volontés étatiques bieii individiiali-
Séesl'unc var rann.rt à l'autre. II est i>.r c~ ~éuu.nt très difficile de
faire une aiialyse de ces volontés et il est presque impossible de parvenir
à l'appréciation des mobiles qui soiit h la base de telle ou de telle autre
disi>osition.
La volonté réelleet effective des parties doit toujours êtrerechercliée
par l'interprète s'il veut aeir de bonne foi, mais la condition préalable de
Cettc recherche est que l~\~olontéelle-mémeprésente sa indivi-
dualité. Ce qui peut bien arriver par rapport à la volonté expriméedans
lin accord bilatéral ou mêmemultilatéral de nature normale, mais qiii
s'avère impossible en ce qui concerne l'acte institutif d'une orgaiiisatioii
internationale. Nous savons qu'en effet, à la base de la création d'une
orgaiiisation internationale se trouvent des raisons politiques de carac-
t,érecollectif en face desquelles les volontés individuelles des différents
Etats participants perdent leur iiidividiialité. Si donc la possibilité
d'avoir recours dans le cas dont il s'agit au principe de la bonne foi est
assez limitée, les arguments que nous avons ici développésnous servent
pour corriger un point apparemment analogue que iioiis retrouvons
dans iin dcs exposésécritssoiiinish 1;iCoiii-(p. 80 du livre jaune, esposk
dii I.iBéria).
Il y a là une référence ail principe de la boiine foi, non cil tant que
critère d'interprétation, mais pliitOt coinrne règle d'action des organes
des iiistitutions internationales, c'est-i-dire, dails le cas qui nous inté-
resse, de I'r\ssembléede I'I&lCO.Les États qui. au sein de cette Assem-
blEe, se sont prononcés ccntre le Liberia et le Panama auraient agi de
maiivaise foi, et c'est pour cette raison que I'elcction serait viciécde
iiiillité.
h'oiis ne croyons pas que cette idée, très difficile d'ailleurs à &tre
appréciéedans le domaine du droit administratif interne, puisse être
iiti1isi.e en droit international, surtout en ce qui concerne l'application
de clauses contenues dans un accord institutif d'une organisatioii iriter-
ncitionale. On dit parfois avec raison quc l'exécution dcs obligations
imposEes i une partie par un traité international doit êtreaccomplie
de hoiine foi. C'est là une affirmation bicii exacte, mais tout à fait
différeiitc de celle dont parlent à cet égard les partisans de la théorie
de la mauvaise foi appliquée à l'actioii des organes internationaux.
Cette dernière ne peut pas êtresupposée par le seul fait qii'un Êtat,en
eserçant légitimement ses pouvoirs en vertu d'une disposition de l'acte constitutif, s'est déterminé pür le oui ou par le non. Les litats ne se
trouvent vas en cette hypothèse dans un domaine quasi-contractuel

bonne foi ne s'impose pas l%sqii'ils votent 'au sein 'd'un' organe
international pour la simple raison que leur activité est totalement
prévuepar le traitéet, par conséqiient,ellen'est pasmêmediscrétionnaire.
Monsieur le Président, Messieurs de la Cotir, après avoir développéle
point touchant ail critère de la bonne foi, nous devons encore voir

comment les principes du droit international entrent en ligne de compte
en matière d'interprétation des traités internationaux, Noiis avons vu
que l'lnstitut de droit international, se conformant d'autre part à des
idées très répandues, indique que les traités doivent être interprétés
à la lumière desprincipes du droit intenzatioizal. Cela signifie qiie l'inter-
prète doit s'inspirer de ces principes, évideniment dans la rncsure où,
lecas tchéant, ils existent. Dans oii des mémoiresque nous avons étudiés

oii trouve des développements assez importants touchant aiix princips
fondamentaux de droit international régissant la matière, dont I'Assem-
hlée de 1'IAfCOaurait fait maiivais usaae. Il s'aait ess-ntiellement du
princi1,c dSnl>r6sleqiii.l jciilcnieiilI'l?t;~'dont Ic ii;i\.irc lut Ir:1>3i,illun
pfii'.r'detulitIIUII\.OIK~OIIIC :tuturitC:t:t LUIIIC ~uridictioii sur CC na\,irt.
Soiis réserve de certaines limitations qui ont étémises en évidence
par la doctrine et par la pratique, nous ne contestons nullement la
validité de ce principe.

Nous devons avouer qu'à cet ég:~rdil y a peut-être un malentcndu,.car
la qucstioii ne consiste pas à ttühlir quels sont les pouvoirs que 1'Etat
du pavillon peut exercer sur les navires qui ont étéenregistrés auprès
de lui, mais, a11contraire, elle vise Ic point suivant: comment et sous
réserve de <i~iellesconditions uii riavire neut faire ti~a~ ~"e tel oii d~ t~ ~ ~ ~
autre l>avillbn.C'est-à-dire,quaavant d'&river à la question des pouvoirs
de caractère i~ublicque 1'Etat vossède à l'égard des navires oui battent

dijà sou $a~~iilolt ,n'doit résoidre une aiit; question qui est'certaine-
ment de caractère préalable.
Et alors nous devons constater que, pour ce qui est de cette question,
il n'y a jamais eu d'accord ail sein de la doctrine et mème de la pratique,
de façon qu'ici vraiment il n'existe aucun principe de droit international.
En tout état de cause, si on veiit penser à un principe de telle nature, on
peut plus facilement penser que le seiil principe est cclui d'après lequel
il y a des limites dc caractère international au droit ~~oiirles navires
de faire usage d'un pavillon national.

1.a question est très ancienne et elle a été longuemeiit débattue
mêmepar I'lnstitut de droit international auquel nous nous sommes
déjà référés, à une époque ancienne dans laquelle le problème se posait
dans une atmosphère plus traiiqiiille que celle esistant aiijoiird'hiii.
Voilà donc quelles étaient les idéesde I'lnstitut au résultat de la session
de 17enisede rS96 en ce qui concerne les règles relatives à l'usage du
vavillon national vour les navires de commerce. Pour être inscrit sur

Ùn registre nationa'l le navire, d'aprés la r&solution de l'lnstitut de droit
internatioiial, doit être #our #lus de moitii la propriété, oii bien de
nationaus. ou d'une société ennom collectif ou en comiiianditc sim»le.
dont ]>lus'de la moitié des associés personnellement responsables &nt
nationaux, oii, troisième hypothése, d'une sociétépar actions (anonymeou en commandite) natioiiale. dont deux tiers au moins des membres
de la direction sont nationaux: la mêmerèrle s'auulioue aiix associations
et aurrci Iirrwiiries jiiriditliics ~iosshdaricdcs nai,ires.
\lais I'Iii;tit~~texig~iiit cncore d'aiitrcs conditioiis. IIexip.ait cil oiitrc
uiic I'cnrrei~risc. uii'il s'ncis.x d'arin:iteiirs individii,ls. de iuiii.ihj ou
bien encor; de 'c&poraticns, ait son siège dans I'gtat dont le navire
doit porter le pavillon et où il doit êtreenregistré.
L'Institut avait donc déjà posé toute une série de questions qui
devaient beaucoup intéresser ~iltérieurement la doctrine et la pratique
du droit international maritime. 11 les avait non seulement posées,
mais il avait aussi indiqué certaines solutions équilibréestendant à ce

qiie la condition juridiqiie dii navire corresponde le plus possible à sa
condition réelle.
L'évolution ultérieure dans cette matière a uuand mémemontré aue.
nonobstant la diversité des différentes législations nationales en ce 'qui
concerne le droit de battre un pavillon national, ce droit est toujours
soumis à des conditions assez précises et parfois sévères.
Notis voulons bien laisser de côté tout ce qui s'est passé dans le
domaine doctrinal et pratique - c'est beaiicoup - entre la fin du
siècle dernier et l'époque prhsente. mais, en noiis référant à une règle
récente de droit international, nous désirons bien marquer la continuité
à travers le temps des exigences juridiques dans cette mati6re.
La première conférence de Gen&ve pour la codification dii droit de
la mer a insérédans la convention sur le régime juridique de la haute
mer l'article j, qui résume très clairement les résultats de ce que nous
venons de dire. Il est ainsi libellé:

aChaque État fisc les conditioiis auxqiielles il accorde sa natio-
nalité aux navires ainsi que les conditions d'immatriculation et du
droit ,de battre son pavillon. Les navires possèdent la nationalité
de 1'Etat dont ils sont autorisés à battre pavillon. Il doit exister
u~ lien substantiel [le célèbregcnuinelink] entre 1'Etat et le navire:
I'Etat doit notamment exercer effectivement sa juridiction et son
contrôle dans les domaines teclinique. administratif et social sur
les navires battant soli pavilloii,,

Cet article évideminent dcmanderait plus d'un commentaire, mais
qu'il me suffise d'attirer l'attention de la Cour sur l'idée qu'il pose
très clairement que le droit de battrepavillo~test un droit conditionné,
- c'est uii droit conditionné - et siir l'autre principe qu'il énonce.
c'est-à-dire celui du lien substantiel.
La convention de GcnCvc n'est pas encore entrée en tigueur et de
même l'ancienne résolutiondc I'Iiistitut de droit international de 1896
n'a pas non plus forcc de droit positif, mais la Cour sait bien que la
force des idées juridiques ne dépend pas iiniqiiement du fait qu'ellcs
soient contenues dans des testes de loi ou des traités formellement
en vigueur.
Le mot efcctiuemetttque nous trouvons dans l'article j précité nous
amène à faire certaines considérations siir une idée qui a étéénoncée
dans les exposés écrits soumis Q la Cour. Aux pages 41-42 du livre
jaune (exposé du Gouvernement du Libéria), en ce qui concerne les
principes qui doivent régir I'interprt2tation des actes internationaiix, on
peut lire ce qui suit: o En interprétant un traité, la Cour doit préférerla solution qui
est plus apte à favoriser, ou, tout ail moins, à ne pas empêcherla
réalisation dii but en vile duqtiel le traité a étéconclu. n

p ~l'~ ~a ~it~ à ~ ~ é"ard iine sériede décisionset d'avis consultatifs
émis par la Cour.
Voilà donc que Ic principe de l'effectiuitédans l'interprétation des

traités internationaux est ici invouué comme un des viliers sur lesauels
devait se fonder la constriiction 'juridique relative'à ~inter~réta'tion
de la constitution de 1'IMCO.
Le principe de I'effectivitéa eii dernièrement, dans la théorie générale
du droit international, pliisieurs développements; il est évidemment
un principe très clair et, par conséquent, parfois très utile pour résoudre
certaines situations de fait qui, à vrai dire, échappent à une évaluation
juridique rigoureuse. Mais précisémentà caiise de cela, il est un principe
à la fois très utile et tres dangereux.

A notre avis l'interprétation juridique ne peut pas être plus ou
moins effective; ou pour mieux dire elle ne peut êtreconsidérée plus
ou 1noin4 correcte dans la mcsiire où elle est plus ou moins e,ffective.
Si, au contraire, par interprétatioii qui s'inspire de l'effectivité on
entend la méthode interprétative qui tend à ce que les buts pratiques
des règles juridiques se réalisent dans la plus large mesure possible,
alors nous pourrons être d'accord avec la théorie énoncéedans les
exposés écrits. Seulement. cette théorie n'a rien à voir avec le cas

présent; car ce,n'est pas siir la base de I'effectivitéque l'on peut soutenir
que certains Etats auraient dû être élus comme,membres du Comité
de la Sécurité maritime. à l'exclusion d'autres Etats. Et il est bien
certain que la présence, conformément à la volonté exprimée par
l'Assemblée de I'IMCO. de certains États dans le Comité n'emvèche
aucunement cette organisatioii internationale d'atteindre ses 'buts.
Au contraire. oii peut bien dire qiie, peut-étre, elle pourra les atteindre
avec olus d'efficacité

Nonsieur le Président, hlessieiirs de la Cour, dans un des exposés
écrits, oii se réfèreavec beaiicoiip de finesse juridique à l'idéede détour-
nement de pouvoir comme étant une des idées qui s'appliqueraient au
cas dont il s'agit (pp. 77 et ss. dii livre jaune). Et non seulement on
invoque ce principe, mais on tâche aussi de démontrer qu'il serait un
principe généralde droit. 011 n'ose cependant pas affirmer qu'il serait
un principe de droit internatioiial. Nous croyons que la raison en est
la suivante: les citations qiie noils retrouvons à cet égard dans le livre
jaune sont toutes reprises, oii bien du droit administratif interne de

certains Etats, ou bicn de la jiirisprudence administrative de certains
tribunaux internatioiiaiix. II s'agit essentiellement de la jurisprudence
du Tribunal admiiiistratif des Natioiis Unies et de celle de la Cour des
Communaiités européennes.
Or, il faut avoir bien clairenieiit h l'esprit la différence qui sépare
les appréciations juridiques d'un tribunal administratif des évaluations
qui sont accomplies tsar une Cour de droit international. Lorsqii'uri
tribunal administratif est appelé à juger qu'un acte administratif ou

bicn qii'iine activité administrative est viciéeà cause d'un détournement
de pouvoir, il considère l'action administrative mise en Œuvre par un
organe administratif. Ce n'est pas alors la légitimitéde telle ou telle
aiitre disposition de loi oii la légitimitédii comportement de tel oii

243-16 ~srosii UE M. ,ior.4co (ITALIE) - 2s IV GO

tel autre organe constitutionnel qui font l'objet de son jugemeiit. Au
contraire, c'est seulement I'acti\ité administrative concrète d'un organe
administratif dans l'exercice de fonctions d'administration qu'il lui
appartient d'apprécier.
Cela établi, on comprend fort bien qiie le Tribunal admiiiistratif des
Xations Uiiies ait pris en considération l'activité concrète du Secrétaire
généraldes Nations Unies en matière d'emploi des fonctionnaires du
Secrétariat. Et si ce tribunal a jugé comme entachés de détournemerit
de pouvoir certainsactes dii Secrétaire généralqiii ont mis fin à l'emploi
de fonctionnaires, c'est précisément parce que le Secrétaire génbral,
lorsqu'il preiid des décisions en matière d'emploi, exerce un pouvoir
discrétionnaire de caractèreadministratif. En effet, le Secrétairegénéral,

en tant que chef du personnel du Secrétariat, apparaît véritablement
comme uii orgaiie typiquement administratif.
Cela n'arieri à voir, doric, avec l'exercice des attributionsdcaractérï
soiiverain des États qui siègent à l'Assembléed'une organisation inter-
nationale, qui est l'institution suprêmeet qui agit toujours en s'inspirant
de motifs d'ordre politiqiie. 13n effet, si vraiment nous dcvoiis tâclicr
ici de dégager deI'enseinble des idéescommunes de droit public certaines
conceptioiis qui soient valables aussi dans le domaine iiite;natiorial,
nous pourrions bien affirmer que, dans presqiie tons les Etats qui
possèdent un système de justice administrative, les actes politiqiies,
et particulièrement les actes émanant d'organes constitutioniiels. ne
sont pas susceptibles d'être jugés et annulés par les tribunaux ad-
ministratifs.
D'autre part, un des gouvernemetirs intéresséssoiitient Iiii-mE.ineqiie,
dans l'espèce, la majorité des Etats ayant voté au sein de l'Assemblée
de I'1lICO dans le seiis que nous connaissons, auraierit vidé sa souve-
raineté (p. 197 du livre jaune). Dans un des exposés écrits, la rechcrclie
relative ail détournement de pou\.oir est fondée sur l'application qui
en est faite par le traité instituant la Communaiité eurol~éennedii
Charbon et de l'Acier. On dit précisémentque la référeiiceail détoiir-
iiement de pouvoir qu'on trouve à l'article 33 de ce traité aurait un

caractère simplement déclaratif, car il serait évident qu'une Coiir qtii
a un pouvoir de contr6le sur certains actes pourrait bien, en tout cas,
apprécier ce vice de légalité.
Alais nous pouvons affirmer, au contraire, qu'il n'en est pas ainsi.
Car il n'existe pas de notion de détournement de pouvoir commune à
tous, ou du moins à la plupart des systèmes juridiques et qui, par
conséquent, poiirrait rtre utilisée aussi dans le droit intcrnatioiiill.
Ainsi que le souligne uii des auteurs italiens les plus récents du droit
administratif (Gasparri, Le délourizenze?d ztepoztvoir duus lc droit de lu
C.E. C. A. - c'est-i-dire de la Communauté européenne du Charbon et
de l'Acier - il se trouve dans les actes officielsdu corigrèsinternational
d'études sur la C. E. C.A., vol. IV, 1). 155) la formule détournement
de pouvoir » ii'a pas un fondemerit commun dans le droit eiiropéen,
oii. poiir inieiix dire, dans le droit de certains pays européens, mais
elle a été empruntée par les auteurs du traité - le traité instituarit
la C. E. C.A. - à la jurisprudence française en matière de contentieux
de l'administration. Ce qui signifie que cette référence historique ne
suffit pas à nous donner la solution des problènieç très complexes
d'interprétation qui en découlent, En effet, mème daris la jurisprudence
et la doctrine françaises, la formule en question ne correspond pas & EXPOSÉ DE ai. aios~co (ITALIE) - 2s IV 60 347
une notion définie d'une manière indiscutable et absolument claire. II
s'agit donc d'une de ces formules qui, plutôt qu'elles n'expriment une
notion précise, font pressentir une notion dont on entrevoit les grandes
lignes, mais qui a encore besoin d'êtrepleinement mise en lumière.

11 serait pour nous facile maintenant de citer à l'appui de cette
affirmation toute une séried'autorités doctrinales françaises, mais nous
ne voulons pas soustraire un ternps précieux à la Cour.
Dans le livre jaune on trouve, à l'égarddu détournement de pouvoir,
des références à la doctrine et à la jurisprudence italiennes. Voilà donc
que nous serions amenés à approfondir ici ce point. Qu'il nous suffise,
au contraire, de rappeler tout simplement que, mêmedans le droit
italien, cette notion est loin d'ètre claire et univoque. Car, surla base
de la notion d'excès de pouvoir, poséepar la loi italienne sur le conten-
tieux administratif, et qui englobe plusieurs vices entachant une décision
d'illégitimité, on a élaborE d'autres vices, qui ne sont pas toujours
bien déhiis, tels que le travestissement des faits, l'illogisme manifeste,
l'injustice manifeste, et d'autres encore. La doctrine italienne qiii fait
le plus d'autorité est enti&rement orientée dans ce sens (on pourrait
citer, par exemple, Santi ltomano, Droit administrutif, Padoue, 1937.
p.270; Borsi, La Justice administrative, Padoue, 1941, p. 44; Zanobini,
Cotrrsde droit administrutif,zme volume, Milan, 1954, 11.195; De Valles,
Elémentsdu droit administratif, Padoue, 1951, p. 164, et d'autres encore).
Bien au'il soit donc très difficile de définir d'une facon uniforme le

s'accordent oour dire aue le détournement de oouvoir est un vice
typique des 'actes qui dhivent êtreaccomplis par ;ne autorité adminis-
trative dans l'exercice d'un pouvoir administratif. 11consiste précisé-
ment dans l'usage du pouvoi; discrétionnaire pour une fin ou Ùn but.
pour un motif ou une cause autres que ceux pour lesquels la loi veut
que le pouvoir en question soit exercé.
Et nous pouvons déduire encore d'autres élémentsqui confirment
les idées que nous venons de préciser; nous pouvons en déduire des
études, par exemple, accomplies par l'un desinterprètes les pliis qualifiés
du droit de la C.E.C.A. - la Commuiiauté du Charbon et de l'Acier
-,c'est-à-dire I'avocat généralLagrange, qui est un expert particulière-
ment connu.
Ilans un exposé très connu qu'il a fait, lorsquc la Cour de Luxem-
bourg aborda pour la première fois la notion de détournement de ouvo voir
(Keczreilde la jurisprudence de la Conr, vol. 1, p. 152)~il a brossé un
tableaii comparatif de cette notion, dans le droit de différents pays
membres, ce qui a montré précisément les diversitts de conception
existant à cet égard, mème dans le domaine des pays européens.

Plus tard, dans un article qui est intitulé sL'ordre jnridique de la
C. E.C.A. vu à travers la jurisprudence de sa Cour de Justice n,qui a
étépublié dans la Revue drr droit public de rgj8, et précisément à la
page 856, i'avocat général Lagrange, en faisant une synthèse de la
peiiséede la Cour, a souligné que la notion de détournement de pouvoir
est incontestablement ilne notion de pur droit administratif. Sans
doute, a-t-il ajouté, peut-on la rattacher à un principe de droit très
général,qui se traduit, par esemple, en droit civil, par la théorie de
l'abus du droit ou, en droit iiiternational, par celle del'abuseof power.
Mais, conclut-il, &tant donné les termes du traité qui emploie l'expres-348 EXPOSÉ DE ni.MOXACO (ITALIE )- 29 IV 60

sion mêmede «détouriiemeiit de pouvoir »,et le contexte de l'article 33
qui énumère les cluatre cas traditionriels en France d'ouverture de
recours pour excèsile pouvoir, il est évideritque la notion s'insèredaris
un système ayarit pour objet d'organiser le recours en annulation contre
les décisiorisde l'exécutif de la Communauté et qui est directement
emprunté à la technique di1 droit administratif dails ce domaine.

[Audience publiquedu 29 avril 1960. malin]

Monsieur le Président, Xlessieurs de la Cour, hier, à la fin de notre
exposé, nous avons tâché de résoudre le probleme consistant à savoir
si et dans auelle mesure la notion de détoiirnement de uouvoir accomuli
par une institution appartenant à une organisation intérnationale seriit
admissible en droit international.
L'analyse que nous avons faite de la doctrine et de la jurisprudence,
soit interne, soit coniiiiuiiautaire- je m'en réfèrespécialement à la
jurisprudence de la Cour de la Communauté européennedu Charbonet
de l'Acier-. nous a amenés à des conclusions essciitiellesnéuatives.car.
eiidehi>riducoiircntieux adiiiinistrniif intcrnntioiial scd2;uuledcvaiit
le; tribun.iiix adniinisirnrils inrc.niatioiiiln'y n p:ii lieilrlcconcevoir
la notion de détournement de pouvoir telle quélle-a étéprésentéepar
les Gouvernements qui s'opposent à notre thèse.E,t alors, de tout ce qiii
précède, onpeut donc, à juste titre, tirer la conclusion suivante:
Il n'v a aucunement lieu d'invoquer la notion de détournement de
pouvoi; afin d'entacher d'illégalitéfaction mise eii euvre par I'Assem-
bléede 1'IMCO.lorsque celle-ci a constitiié le Comité de la Sécurité
maritime.
En effet, nous espérons avoir assez clairemeiit établi: premièrement,
que la notion de détournement de pouvoir n'appartient pas au droit
international coinniun; deuxièmement, que cette idée a un caractère
purement administratif et que, paf conséquent.elle n'est utilisable que
dans des procéduresde droit administratif. Si tel est vraiment lcas, nous
avons vu que le détournement de pouvoir peut se réaliserseulement si
l'acte est accompli par une autorité administrative dans l'exercice d'lin
autorité administrative dans le domaine du système juridique deas une
I'IhICOmême.1)eplus, l'Assemblée del'I3ICO. en élisant les membres
du Comitéde la Sécuritémaritime, ne jouissait certainement pas de la
latitude d'appréciatioii qui est le propre du pouvoir discrétionnaire.
En affirmant cela. Monsieur le Président. Mcssicurs de la Cour. nous
n'excluons cependant pas l'autre idéede discrétionnalitédans lechoix
des membres du Cornite de la Sécurité maritime, que nous avons déjà
développée lorsque nousavons considéréla notion d'tlection. Il s'agit en
effet de deux notions tout à fait distinctes.
L'Assembléede I'IAICO,nous le savons, est uii organe constitutionnel,
qui s'inspire, dans son actiyité,à des motifs de caGct6re politique; par
conséquent, elle n'accomplit pas les actes administratifs qui seraient
normaux pour le Secrétariat d'une organisation internationale. De plus,
quand elle a applique l'article 28 a),elle a accompli une opération obli-
gatoire, qui ne lui laissait pas de marge discrétionnairc. Voilà donc pour-
quoi nous concluons, sur le point du détoiirnemeiit de pouvoir, d'une
façon tout à fait négative, en repoussant tous les arguments qiii tendcrit
d introduire dans le système dii contentieiix qui appartient au droit international commun une idéequi ne peut, en aiictiiic façon, lui appar-
tenir.
Xlonsicur le l'résident, >lessieurs de la Cour, j'en arrive maintenant
ai! dernier iloint de mon exoosé.
L'exposé'écritdu ~ouve;nement du Panama (pp. 197 et 198 du livre
iaune) contient une vrotestation de ce Gouvernement qui se réfèreaux
deux 'points siiivant;:

. .
affirme I'égalitbsouveraine des États dans l'ordrc internatiknal;

1)euxièmement: Les Etats appartenant à ladite majorité de 1'Assem-
bléede I'IMCO,en donnant leur vote, ont pris comnic base la nationalité
des propriétaires privés des navires arborant le pavillon du Panama, ou
bien la nationalité de leurs équipages, ou bien encore la nationalité des
experts et des techniciens qui rendent leurs services aux mêmesnavires.
En faisant ccla. les Etats en question ont portéatteinte à la compétence
exclusive di] Panama et ils sont intervenus dans les affaires internes de

cet État.
Voilà les deux points.
En ce qui conccrne !e premier point, il suffit de remarquer que Ic prin-
cipe de l'égalitédes Etats dans la communauté internationale est cer-
tainement un vrinci~e fondamental et mêmeconstitutionnel de l'ordre
jiiridiquc intvriiati~ii;al. C'cit ~ir<:cisi:i~iitiirci.I;~IICCC l~rincil'<.:;'"p.
pliiliic~.iiltriit:id:iiiiIA riit,iiirdu n'cxiitci~t pas des rilgles jiiridiques
spcsi;iles r,:lati\,~s;i~lc iitiiatioris ~iirirlitliit:i[>articuli;.1:;:;tc.x:ictc-

ii11:iI(:c:ij de I'.irticli2b. qiii rr<liiit:ri ccrtainca ,~iialit;.i dcfi1:ttaiII
\2~~dec 1<:1<rCclfiuii;aiCUIIIII~ (l.e la St;ctirit<;iiiaritiAict.1i'.gardl'ordre
III~IJI~IIInt~~ri~.itit,iiC~I IOIII.'Lf:tit ~cii~l)l:~;I~droit int~.ril~ <I'a~)r&
une règleconstitiitionnclle commune - que nous retrouvons dans presque
toutes les coiistitutions des Etats-, tous les ressortissants d'un Etat
jouissent de l'égalitéjuridique. Mais cela n'empêche aucunement que
d'innombrables inégalités de situations juridiques se produisent par
application des règles juridiques particulières qui visent telle ou telle
autre catégorie de personnes.
Pour cequi est du deuxième point qui se réfèreà la compétence exclu-
sive des Etats, nous devons observer que l'argument du Panama sup-

pose qu'il soit déjà prouvé, ce qui, au contraire, d'après la doctrine du
droit international et la jurisprudence de la Cour. est bien loin d'être
recoiinu. Nous croyons avoir prouvé qu'un État n'est pas libre d'enregis-
trer, sans observer aucune condition, n'importe quel navire, et qu'il
peut concéder son pavillon à un navire seulement sous réserve des limi-
tations imposées par le droit international,
Eii tout état de cause, il faut aussi admettre quc la matière elle-méme
qui forme l'objet de !a protestation du Panama n'appartient pas au
domainc réservé deI'Etat, aux termes de l'article 2, paragraphe 7, de la
Cliarte dcs Nations Unies. Cette matière a étérégléesur lc plan inter-
iiational, comme il résulte, entre autres, de l'article 5 dc la Convention
<le(;criève de 1958, que nous avons déjà cité;ccla dit, il n'y a qu'à rap-

pclcr la jurisprudence de la Cour, qui, h maintes reprises, a établi qu'une
matière ne peut pas appartenir au domaine réservéd'un Etat lorsqu'elle
est l'objet d'une règle de droit international. EXPOSÉ DE AI. ~IOSACO (ITALIE) - 29 IV 60
350
Monsieur le Président, Messieurs de la Cour, nous soinmes arrivés à
la fin de notre exposé.
En résumant tout ce <pieiioiisvenons de dire, nous sommes convaincus
que les développements ultérieurs du débat ont montré une fois de plus
le bien-fondé descoiiclusionsqiie nous avons déjà forniiiléespar écritet
que nous allons répéterici, c'est-à-dire:
I're~nièrement:Le Comitéde la Sécurité maritime de I'IMCO a été
correctement constitué en conforniitédes dispositions de la convention
qui a crééladite organisation;

Deuxiènemetzt: L'Assembléede I'li\ICO.en choisissant les membres du
Comitéde la Sécurité maritime,a exercéses pouvoirs d'iine façon Iégi-
time.
Le Gouvernement de la Républiqueitalienne a l'honneur de demander
à la Cour de bien voiiloir se prononcer dans le sens susindiqué.
Monsieur le Président, >fessieursdla Cour, eii terniinant rnoiiexposé,
qu'il me soit permis de voiisreinercicr vivement pour la patience, l'atten-
tion et la considérationavec lesquellesvous avez bien voulii écoutermon
discours. 7. ORAL STATEMENT OF Mr. RIPHAGEX
(REPRESENTIN THE GOVERNDIENT OP THE NETHERLANDS)
.4T THE PUHLlC HEARING OF 29 r\PRII1960, MORNING

Mr. Presideiit and Members of the Court.

The present request for an Advisory Opinions raises a number of im-
portant legal questions. Since-apart from the U'ritten Statements sub-
mitted by the various States Members of the International Maritime
Consultative Organization-not less than seven States take part in the
oral proceedings, you will allow me to limit myself to some aspects of
the case onlv. and not to elaborate other. no less im~ortant. ~oints.
Atr.~residéntand Membersof the court, 1ventuie to sub;nit that the
Written Statements uresented to the Court bv Liberia, the United States
and Panama set fhrth many-in themsehes very interesting-legal
submission, not really relevant to the question with which your Court is
confronted.
Sureiy the Court is not faced-as theUnited States'Written Statement
at page 149 seems to suggest-with a question regarding "the sorereign
right of a nation, under international law, to grant its flag to merchant
ships and to prescribe the terms of registration of such ships under its
..Yb'.
Neither does the present case involve any problem of voting procedure
or of themajority required for taking decisions, such as the problem on
which the Court s Advisory Opinion of 7 June 1955 and the various
separate opinions attached thereto provide the authoritative consider-
ations and solution.
The point at issue is a much more particular one; it concerns a specific
election-that which liastaken place on 15January 1959-for a specific
international body: the Maritime Safety Committcc of the IMCO.
Now, nobody denies that in proceeding to the election of the fourteen
members of the Maritime Safety Committee the Assembly is bound by
certain directives. And these directives are to he found in the Convention
establishing the IMCO and nowhere else.
The law on the matter is clear: as the Court lias stated in its Advisory
Opinion on the Conditions of Admisston of a State to Membership in the
United Nations, the international organ shall observe the treaty provi-
sions which constitiite criteria forits judgment andmaytake into account
every factor which it is possible reasonably, and in good faith, to connect
with the conditions laid down in such treaty provisions. In other words,
a State wishing to challenge the election which has taken place on
15 January 1959 is boiind to establish that the Assembly on that occa-
sion overstepped the limits of its discretion in basing its designation of
the States to serve, for a term of fouryears, as members on the Maritime
Safety Committee, on factors which cannot be reasonably and in good
fait11connected with the conditions laid down in the IMCO Convention.
In trying to arrive at such a conclusion, the Written Statements of
1-iberia,the United States and Panama al1tend to piit into tlie clauses of
tlie IMCOConvention a rigidity which they do not have aiid whicli, more-3j2 STATEUEYT OF >IR. RIPHAGES (NETHEKLASDS)-2 V 60

over, is incompatible with any reasonable and practicable construction
of treaty provisions concerning the composition of international bodies.
In effect, those Written Stateinents endeavour to estahlish that there is
an ahsolute right of certain States llemhers ofthe IMCOto he a memher
of the Maritime Safety Committee, a right depending solely on statistical
data, leaving no room for choice or judgment of the Assembly at al].
According to the thesis put forward in the said Statements, the Assembly.
in proceeding to the election of the Maritime Safety Committee, would
actuaUy only have to go through the mechanics of taking the Lloyd's
RegisterofShi$$ingStatisticalTables, striking out the names ofStatesnot
Members of IMCO, putting the remaining figures of registered tonnage
in decreasing order and looking at the eight States appearing at the top
of the list.
warrant the term "elected" as used in Article 28oc(a)rof the IMCO Con-
vention, it may he ohserved that the thesis of Liberia, the United States
and Panama. really narrows down the directives laid down in Article 28
of the IMCOCoiivention to the point of conipletely changing their mean-
ing and purpose.
&Ir. President and Members of the Court, the relevant language of
Article 28, and 1 must ask for the indulgence of the Court for reading it
out once more, reads as follows:

"The Maritime Safety Committee shaU consist of fourteeii niem-
bers elected hv the Assemhlv from the Memhers. ~overnments of
those nations having an important interest in maRtimc safety, of
which iiot less tlian eight shall be the largest ship-owning nations."
Now, in the construction advanced by Liberia, the United States and
Panama, this clause would read as follows:
"The Maritime Safety Committee sliall consist of fourteen mem-
bers of which not less than eight shall be the States in which the
largestamount of tonnage is registered."

The element of having an important interest in maritime safety, and
the corresponding criterion of being a large ship-owning nation, have
vanished into thin air.
Now, what device of magic has heen appiied to perform this meta-
morphosis?
We are told, inter aliain the United States' Written Statemïnt on
page 141and following, that "the IhlCO Conventioii should be inter-
preted and applied so as to giveeffectto its purposes", and. in particular,
at page 143, tliat "the Coiiveiition should be considered in its entirety".
Surely thosc are wise remarks, which the Court has already several
leadstoxa completedisregard for one essential group of ivords in the Con-
vention-the important interest in maritime safety-and to the replace-
ment of another criterion of the Convention-the fact of being a ship-
owning nation-by the completely different test of registered toniiage?
Obviously, the Coiirt's Advisory Opinions cited in the United States'
Written Statement do not warrant such a conclusion. Neither do the
Articles of the IMCOConvention, cited on pages 114to 147of the same
Statement, imply any necessity of modifying the wording of Article 28,
under colour of giving effect to the purpose of the Convention. On the contrary, the Articles cited are either irrelevant for the questioii now
before the Court or rather point in the direction of a large measure of
discretion for the Assembly in designating the members of the Nantime
Safety Committee.
Thiis, for instance, it \irould seem obvious that Articles 41 aiid 42 of
the lAlCOConvention concerning the hancial obligations of the hlembers
vis-à-vis the Organization have nothing to do with conditions of eligi-

bilitv for the Maritime Safetv Committee. It is a matter of common
kiio~~ledgerliar rhc dcreriiiiiia'rit>iiof III,. ;t.:~lt(gf;ipportionrnciit of thc
t:xpt:iist:t#f a11~~it~~rii:iiion~ ~l rg~ii~~~:itiaunii~oiig 11s ~~ici~ih~~ irsilic
.;iihic.ci)fnisiiift>l,lcoi.iidt iati<,ii iiiiliiiliiia iiicli rliinus as c:iii:icitv ro
psi and prospcctivc henefits from the wock of the organizati&~. Quite
difierent scales arc applied to different organizations and it would be

hard to draw fromthe soliitions adopted any principle beyond the ptircly
financial sphere.
Equally irrelcvarit is Article 60 of the Convention, concerniog the
eiitrv into force of the Convention. It would seern obvious that for the

out aiiG need or indeed anv vossibilitv-of discussion. aoi>ieciatioii or
..
choice.'ii rc<luircd. Heiice, iii'tliai :\riirlr, rlic refcreiice IO registcrcd
t<iiiii;igi:\r.liicit,in:iy h~.rein:irkcd iiipasiing. iriilicaies iliai tlie fr;iriit:ri
of thc I\ICO Ct>iii.enrioiiivcre \i.rI:itv;irvof the possihilit!. of iising tlit:
criterio~iof r~.gistt:rrd t<iiiiingr.in :Iiontexi wlicrï siich critcrioii tr,<iiildhe
;il~lx~qri;~te.1ii~I~:~~ itl.ii n)ipsrcnr fruin the I>rclraratory wsrk for the
I\ICO Convention that ttic dr:iftsnicii of tliai Coni,t,nrion vcrv \i.clI ~iiv
the difference betweeii one criterion and the other. In Appeiidi: II of the

Liberian Written Statement there is cited, on page 101, a Report of the
Committee responsible for the first draft of the Convention. In regard to
the composition of the Council of IMCO, this Report expressly statcs:
"we have not intended that the selection should be made on a rigid, sta-
tistical hasis".
Now it is true, as the Liberian Statement remarks. that no sucli com-

ment was niade with respect to Article 28 (a)-then Article VIl-con-
cerning the Maritime Safety Committee. But 1 do not think that 1nced
take up the time of the Coiirt by an elaboration of the relative rnerits
and demerits of the avgumentum a contrario and the argumentum per
unalogiam in geiieral. It would appear sufficient to note, firstly. that a
distinction hetween a rigid, automatic test on the one hand aiid :i com-
prchensive giiiding concept on the other hand was present in the mind

of the drafters, and, secondly, that they expressly chose the latter when
the election of an inter-governmental body was concerned.
Mr. President, >lembers of the Court, the other articles cited in the
United States' \Britten Statemeut in support of their thesis refer to the
task entrusted to tlie Maritime ~af~tv~ ~mm-~tee and to the niachinerv
rtiroiigh tvhich the rc.iiilts of II; iiork.:ire 1iq.iiigdciilt wirh hy the i:oiinc;l
aiid t:\~<-iitu;ill11).tlit.Asjenil>lyof tli,: I\I(:O.

If ir is uossihlc to dia\\. froiii tliq,s~;.irticlc5 ;inv coiicliision ivitli rr.e:lrd
tothe composition of the Maritime Safety ~omGittee, it would seeinthat
they rather underline the measure of discretion left to the Assembly in
the election of the members of the Maritime Safety Committee. It is the
Assembly-a body in which al1 llember States are represented-which
recommends to Alembers for adoption regulations concerniiig maritimesafety which have been referred to it by the Maritime Safety Committee
throurh the Council. The lllaritime Safety Committee has primarilv a
technycal task of preparing suçh recomméndatioiis for conside~ation~b~
the Assembly. The fial word is with the Assembly in which-1 repeat-
every Member State is represented. 111the Maritime Safety Committee,
though this is certainly a principal and permanent organ of the organ-
ization, the emphasis is not so much on the politicarepresentation of the
States members of IMCO as on a com~ositiori whicli ci~rresponds to the

tered tonn'aie to tlie directive of imlio~aiit inter& in maritime safëty
as evidenced by the fact of being one of the largest ship-owning nations.
In this connection 1inay perhaps, in view of the Oral Statements of
Liberia and the United States, make some remarks in passjng on the
inter-relationship betweeii the concept of an "important intercst iii

maritime safety" and that of "large ship-olrning nation". Indeed it is
clear from the text of Article 28 (a) that in this Article both coricepts
are closely connected. If the Representatives of Liberia and of the United
States have read in the Netherlands' Written Statement an affirmatioli
of this fact, they have rightly done so. Rut the same Representatives are
mistaken in the conclusions to be drawn from this fact. Actually the),
slart from the assum~tion that the amount of registercd tonnwe detcr-
mines exclusively, absolutely and aiitomatically The size of a Siate as a
ship-owning nation, and then draiv from this wrong premise the conclu-
sion that the amount of registered tonnage also determines exclusively,
absolutely and automatically the size of a State's interest in maritime
safety.
The correct reasoning, in our submission, is rathcr the reverse. The
close connection in .4rticle 28 (a) of "intercst in maritime safety" and
the concept of "ship-owning nation" uriderlines the sense in which
the drafters have used the latter concept; they have used that concept
not as a forma1 concept referring to a purely administrative fact-
the registration-and capable of being determined by a simple esam-

ination of statistical figures, but as a general conccpt referring to
al1 sorts of considerations and factors which are relevant in respect
of tlie task entrusted to the members of the Maritime Safcty Committec.
Even less convincing than the argunients drawn from the clauses of
the IRlCO Convention and the preparatory work ar-i: those advanced
by Liberia, the United States and Panama on the basis of other
Conventions and agreements, and on tliat of the general rules of inter-
national law.
First of all. one has some difficulty in understandirig what light caii
possibly be thrown on the question of the composition of the Maritime
Safety Committee of IAICOhy other multilateral conventions, and even
bilateral conventions, in respect of shipping. There does not esist a
single other convention in mhicli the concept of "States having an im-
portant interest in maritime safety" or the concept of "ship-owning
nation" has heen uiilized. Nor is the qnestion of election of the memhers
of the Maritime Çafety Committee in any way connected with general
rules of international law with regard to maritime jiirisdiction. Once
agaiii we are presented with a wealth of material on tlie obligatioiis of a
State iindrr international agreements in respect of the ships registered STATENEST OF AIR. RIPHAGES (SETHEKI.ASDS)-29 IV 60 355

in that Statc, and on the jurisdiction of a State under international law
in respect of ships on the high seas; both matters of great interest, 11iit
in our submission wholly irrelevant to the case at present before the
Court. Indeed, it is true that numeroiis multilateral conventions on
shipping oblige the States parties to such conventions to take legisbative
and other measiires in order to seciire the safety of life at sea, the sea-
worthiness of vessels, adequate living and labour conditions of crews on
board ship, and so forth and so on.
Appendix 1of the Liberian \Vritten Statement cites a niimber of siicli
conventions. Therc is really nothing surprising in the fact that such
obligations are imposed on a State witli respect to al1 ships to whicli
that Statc has granted the right to fly its flag. Evidently there is no
escape from the argument that a State wliicli has granted a ship the
right to fly its flag should be internationallyresponsible for such ship. its
conduct and tlie conditions on board. Sucli responsibility exists irre-
spective of the national system of registration. It is the express grant by

a State of the riglit to fly its flag which entails its responsibility.
But such responsibility cannot be advanced as the basis of a clairn
of a State vis-A-visanother State in an iiiternational oreanizatiori. witli
regard to the right to be elected as a member of an intirnational body,
even if a right of that sort could exist at al1 iinder the constitution of
tbat organigatioii.
Mr. President and Memhers of the Coiirt, now that we are on the
subject of the treaties cited in Appendix 1of the Liberian \Vritten State-
ment, the Court may perhaps allow me to observe between parentheses
that several of these treaties, indicated by Liberia as "illustrating the
use of registration as a connecting factor in maritime matters", do not
even rank as siich under their own wording. Some of them use the coii-
cept of the flag as exl>ression of the link between a ship and a State.
without any reference to the conclusiveriess of national determinatioii
of the right tofly the flag or to registratioii. Thiis. for instance, the Treaty

of Mannheim, the Convention aiid Statute of the Kegime of Navigable
Waterways, and the Convention relating to Simplification of the Tnspec-
tion of Einigrants on Shipboard. Other conventions, in particular tlie
Convention for Kegulating the Police of the North Sea Fisheries and tlie
Final .4ct of the International Fisheries Conference 1943. reqtrireregis-
tration of fishing vessels, for obvions reasons, \\.hich have nothing to do
with an alleged rightof a State to determiiie, with international effect
vis-A-visother States, which sbips belong toit.
These remarks are only made in passing and by way of illustrating tlie
irrelevaiicy of miich of the material presented. Already in itself it does
not make miicli sense to put together a series of treaty provisions "iising
registration as ;i connecting factor" since it is obviously impossible to
draw, withoiit fiirther argument, a conclusion from the use of a "coii-
necting factor" in one contest for the siiitability of that same factor in
quite anotlier context. One might as well pretend that the use of domicile

as the connecting factor for determining the law applicable to family
relations is a strong argument in favoiir of construing domicile of the
owner as the sitiis of real property!
Now it might be argued that at least some of the bilateral agreements
cited by Liberia do give rights in respect of shipping to one State
vis-à-vis another State, and espressly state that such right exists \vit11
regard to any sliip that is registered witliin the territory of the fornier356 sTATi<.\lEsT OF aiK.HIPHAGE'I (~~l'lllin1.:%~1)~)-2~ 1\.60

State. Biit again, this fact cannot have any bearing on the question iiow
before the Court, since the question now before the Court does not
concem the right of the vessels of one Stateto enter the ports of another,
nor does it concem the treatment of foreigri shipping, nor anything else
relating to the status of a ship in foreign waters.
On the other hand, the present case does involve the position of
membcr States uithin ail international organization and the alleged
absolute right of a State to bc clected as a rnernber of one of its orgaiis.
Liberia aiid Panama claim such right on the basis of the fact that a very
large amount of tonnage is registered within theu respective territories.
Sow if, for instance, Liberia, under its bilateral Treaty of Friendship,
Commerce and Xavigation of August S. 1938, with the United States,
claimed,in respect of a vessel registered aithin its territory, any privilege
accorded uiider that Treatv to Liberian mercliant vessels. 1do not think

suing alawfulavocation'oii the high seai, w8iild constitute aviolatiOnof
Liberian sovereignty.

Again, ships registercd in Liberia and passing the Xorth Corfu Channel
or any other strait connecting two parts of the high seas would ccrtainly
count in determining whether such strait is being used for international
navigation.
If, by iiiiscliariçe, a vessel registered in Liberia were to collide on the
high seas with a Turkish sliip, Liberia could exercise its criminal juris-
diction in respect of the crew on board the Libcrian ship with regard to
such incident of navigatioii.
.4U this is not contested aiid is indeed tindeniable. It has, Iiowever,
nothing to do with the question whether or not the Assembly over-
stepped the liinits of its discretion in not electing Liberia as a inember
of the Maritiiiie Safety Committee.
Alany a page of the \Vrittcn Stateinents of Liberia, the United States
and Panama has been devoted to the exclusive jurisdiction of a State
over the \,essels registered in that State when they are on the high seas.
Cases are cited and learned authors are aiiotcd at some leneth. A11this.
liioiir iii1~iiii;siiiicoiii~ilcrvlyI)<:siilethe poiiit. because the stxtvrnriitz
fnil to ilionirhtitnr.<.vjânrycoiiiicctioiirliere cuiild pus..il;ly cxisi 11ctx.ccn
tlic,rsclusii.~ iiiriidictlon of a Srar<>\.tr Askibuii ilir hivh seas and rlie
qualification if a Stnttias "having an irnlioriant interest in maritime

salety" and as being a "ship-owning nation" in the sense of Article 2S(n)
of the IMCO Convention. Surely the enforcement of the national legis-
lation of a State concerning siich matters asare enumerated in Article 29
of the Convention, on the high sens,can only be effected by the flag
State. But it requires no great effort of imagination to see that the
national rules and regulatioiis in respect of aids to navigation, con-
struction and equipment of vessels, manning from a safcty standpoint,
prevention of coilisioiis, handliiig of dangeroiis cargoes, and so forth
and so on, are iiot at al1 enforced hy warsbips, police patrol boats and
Governmciit vessels on the high seas, but they are enforced hy the
autliorities on the shore at the home port of the vessel, through
establishments in the coiiiitry where the ships actually belong and
regularly return, in the esercise of the jurisdiction of the State over
the territory where the real centre of the shipping enterprise is located.3j8 ST.4TE)IES.i' OF )IR. RIPH.4GES(SETHERLAXDS)-29 IV 60

Court against another State, has directly applied international law to the
question of the qualification of the requesting State. In other words, in
order to invoke a rule of international law against another State, the
fornier State inust possess the status required to this effect under the
said rule of international law.
It would scem tome that this principle applies with eveii greater force
to cases such :is tlie present onc. In order to invoke vis-à-vis other States
whatever rights -if any-that Article 28 of tlie IAICOConvention might

give, the requesting State should have the status described in the rule
in question.
Xow, iii the Notlebokin case, the status of a State as entitled to bring
a claim against another State \vas, so to say, the counterpart of the
status of an iiidividual ha\.ine the nationalitv of that State. Now. that
Itist-inciitionccl jl:itii>fii;itiii~aliiYis onc \\.liiciiis the cuhjcof nrr~ionnl
Irb<d::tir,iiniid iiatii~niiliiiliiiinistrativc ~)iacricc. Scvcrtlicl~ss. ttiç Coiirt
lins of tilt2oninion that ilniionai driunnliiiition of tiic sl;itu> of n hers,!ii
as being a national of a State, is not decisivefor the ;&tus of th& ta te:
in respect of the rule of international law coiicernina the conditions under
which sucli State can oresent a claim aeainst anode1 State.

In the present case: the status relevaiit for the application of Article
28fai is the status of a State "having an im~ortant interest in maritime
safef) hy reason of its being a large-ship-o&ing nation". Now, to this
internatioiial status does not correspond any prc-cxisting status of
"interests" or "ships" as determined by national legislation.
Thatstatus is not the reverse of anv statiis de~ ~ ~ u~ider national law.
II (loe.;iiot neccssnrily folluw iroiii tlic fnct that n large niiniher of .iliilii
Iisve, iiiiclcr I.iberi;iii Ic~is1;itiuii.ilii. s~~tiisof 1.1heri:iiiihips, tli;it l.ibcri:i
ii, iii 111si:nsc of :\rticlczS (2) of rhr I\lCO Conventi<.ii, ;I1:irgr.".4iil,-
o\r.niiig ii;itii>ii". 'l'liiic tlierewns lesi re:.soii tli:in in tli.\'ullehohm
cnsr IO consi<lertlie f:ict of>Iiil,iIwinl: iccistcrc<l iii 1.ihciin :is relcviint.

let alone as decisive for the question iowubefore the Court.
Again, if there were a necessary connection between the status of a
State as circuinscribed in Article 28 (a) of the IMCO Convention andthe
status of a ship as defined under national legisfation, there woufd still
apply by analogy what the Court has said in tlie iVuttebohm case:

"A State cannot claim that the riiles it has thus laid down are
~:~iiitlc~tlo rt.;ogiiitioi1)).otlicr S1:itc.i. unlchsir li;i+;ictr<l in <.or,-
foriiiit!. ivitli tliis gcnc;IIIII iiinkiiiçttic Ieg.11iii.ri<l%oni;iti<inIlity
;.ccr,rd ~vitltliiiiitlivi(liidl'i c:iiiiiiicconiir.cr\iiiIilic Sr;.ri:\r,liicii
assumestlie defence of its cirizens by means of protection as against
other States."

Biit there is not even such a necessary connection between the two
types of status.
Obviously the absence of such a coniiectioii makes the concept of
"having an iiiiportant interest in maritime safety by reason of being a
large shipowniiig nation" somewhat less precise than the concept of
nationality as the basis of a Stare's right under gencrril iiiternational law.
Now tliis is not at al1an iiiconvenience. And here we come to theother
reason why the principle underlying the Coiirt's decision in tlie Nottebohm
case, in Our siibmission. applies a fortiorito the present case.
Indeed, in coritradistinction to the rule of internatioiial law applied in

the Moltebohm case, Article 28(a) is not-to borrow ûphrase from another STIITEZIEST 01' ZIH. RIPHAGES (SETHERL.~SDS)-2 I' 60
3j9
branch of tlie la\\,-aself-execuli~tclause.Whatever interpretation of the
word "elected" in Article zS (a) is adopted, not even Liberia, Panama,
andthe United States deny that Article &(a) does not in ilselmake any
State a member of tlie Maritime Safety Committee, but must be applied
by an international body, in this case by the Asscmbly of IhlCO.
Accordingly, Article 28(u) is a directive for the Assembly and such a
directive need not have the same precision as is advisable for rules which
directly determine the rights and duties of States.

Jlr. President and Members of the Court. as I indicated at the outsct.
I Iia\.e Iiiiii1t:dniyscll 10 ;t.in~ ;i;pict- uiily oi tlit: i:;ln%:illuiv?~l
at tlic i:iid uf ni). slnt#:mciit to iiiinni;iri/.~?tlie niain points
First-in proceeding to the election of the Alenibers of the Maritime
Safety Committee, the Assembly enjoys a large lneasure of discretion
limited only by the directive that al1 Xembers of the Maritime Safety
Committee should have "an important interest in maritime safety",
wbereas with regard to at least eight of them, such interest should be
evidenced by the fact that they are "the largest ship-owning nations".
Second-there is iio support whatsoever in the IMCO Convention for
the thesis that tlie amount of registered tonnage alone <]ualifiesa State
for election under tliose directives.
Third-other niultilateral and bilateral treaties which may or may

iiot use registration as a connecting factor in maritime matters, and the
rules of general international law in regard to jurisdiction over vessels
on the high seas, are irrelevant tothe question at present before thecourt. 8. ORAL STATEMENT OF Mr. SEYERSTED

(REPRESENTIN THE GOVERNMENT OF NORWAY)
AT THE PUBLIC HEARINGS OF 29 APRIL 1960

[Pztblic Iiearingof29 April 1960, morning]

hlr. President, Honourable hlembers of the Court.
Before presenting the Oral Statcment of my Government. 1 rvish to
express to you tlie great respect which my Government has for this High
Court. 1also wish to state that 1consider it a great honour and a privilege
to be given tlie opportunity of presenting my Government's view to
you, hlr. l'resident, and to the honourable Members of the Court.
1 shall confine myself to first stating the principal contention of my
Governmeiit, and then, on a subsidiary basis, 1shall deal with some of
the points raised by the learned Representatives of Liberia, Panama and
the United States in the course of their Oral Statements-without,
however, making any attempt to cover the entire fieldof their argument.

1

Article 28 of the IMCOConvention provides that al1fourteeii iriembers
of the Maritime Safety Committee shall be "elected" by the Assembly.
It has been pointed out by Representatives from both sides that this
Court has, on several occasioiis, stated that the terms applied in inter-
national conventions should be interpreted in accordance witli their
natural meaning. My Governinent submits tliat the tenn "elected" im-
plies a choice, and that it would be incorisistent with this term to hold
that the Assemblyisbound by oneautoniatic and mathematical criterion.
Moreover, my Government feels that the term "ship-owning nations"
in itself is not sufficiently clear and specificto lend itself to such an auto-
matic application. Indeei-1,we beliere that it would not be in accordance
with the natural meaning of the tenn "stiip-owning" to make it mean
"shipregistering". If this had been the intention, thedrafters would have
used another tenn.
'l'l~ccons1~1er;itioiiirc. in rlic vicof riiyGovcriiiiii~iit,decisiv~.:\iid
tltr!.ire~iifici~.!~ es1;cblia1111;iILwts il.,III~C~III~If 111dr;tftt;rs $31
tlle l\lCO Coii~~c111iuI1:tllo\1116:\j;t~~~iblircxl clta>ic,.l,:icomp:ir;i-
tive e\~aluationof each candidate in al1reléïant respects.when it &s to
select the eight largest ship-o\vning nations.
This interpretation is also supported bythe general.requirement, laid
down in Article 28, that tlie memberi of the Maritime Safety Committee
should be "nations hnving an important interest in maritime safety".
This requirenient isplaced at the head of Article 28 (a) and thus applies
to bot11groups of members to be elected, including those whicli shall be
"the largest ship-owning iiations". This general applicability is also
reflected in theensuing text of the Article. With the indiilgence of the
Coiirt, which has heard this .4rticle on several occasions already. I would
like to read it out once more: "The Maritime Safety Committee shall consist of fourteen mem-
bers elected by the :\ssembly from the Members, governments of
tliose nations having an important interest in mantime safety. of
which not less than eight sliall be the largest ship-owning nations,
and the remainder shall be elected so as to ensure adequate reprc-

sentation of Members, governments of other nations with an impor-
tant interest in maritime safety", etc.

Unlike the learned Revresciitatives of Liberia. Panama and the United
States. \i.chelievc tlie \r.urcls''of \\.liich" :ind 'otlier" give fiirtlier e\.i-
~CIIC~:tli:it III<;~lriiflc:ri~iit:fli:ifI>UIIh I?(>upshlioul(lli:i\.<;iiiiiiilx,rt;ini
intcrcîi iiini:iritiiiicsafct\..,\iicl tlic Ivnst ive ctiii ttiçii ilii i.; tu iiitcrI)ret
tlie terin "sliip-owning iiitions" iii the way 1 have inclicated above, so

that it conforms with tlie gcneral condition of "important interest in
maritiiiie safety". Otherwise. if the Assembly were to apply the
mere fact of registration :is an automatic criterion, and disregard al1
other factors mhich qualify a nation as "ship-owning", one could not be
assured that al1 tliose members it would thus "elect" really have an
important interest in maritime safety.
1 might add that the Assembly, which is espressly autliorized by

Article 55 of the Convention to interpret its terms. did, after a full dis-
cussion, adopt the view that :\rticle zSdoes not involve an! automatic.
mathematical test. This it did when it decided to arrange for separate
votes for cach of the eight places oii the Committee and when it subse-
quently failed to elect two of the States included in Lloyd'sList.
The Oral Statement made by the learned Kepreseiitative of Liberia
has left no doubt that the rules for reeistration in that country are
p;irticiil:irly Iil>cr,i:iii(tl.iiî iliffcr grc:.tllfriiiiitlic ru1c.iof tlioi<~<:Ouii-

tries wliicti \i.,:it:li.cted to th^.\I:iriiiriit. nf,-iy (:oniinitt<c..The(liiierciicc
in tlie soiicliiii,iii for rccisti;itioii le:iils ;i diifcreiice het\vccii Ili<*(:c>uii-
tries as far asthe real meaniiig of flying a flag is concerned-a difference
which it is natural that the Assembly should take into account wlien
electing the eight largcst sliip-owning nations. Indeed it iscommon know-
ledee that Liberia and Paiiama differ from tliose eielit shio-ownint? ..
ii:t~ioiis\vIi~cl~wvrt. c:lt.~~i~i:,tlic \I:nri~iincS.tf<.ty(;r,niiniti~~c ~11 1nitin-
Lei ni rqxct> \vI.ic.li..I<:cntirely rcl!..II,it-ilit,r~~~~iiirc~i~? li<~ <It~ii.ii

II :\ri: 2. :il iih I I~ :\iiIlv S . tlii;r~~ii,it..<:iititlcd tu 1.iki.
into account'when electing a commitfee to' perform the functions de-
scribed in Article zg-comparc Article I (a) of the Convention.
Should the Court require further information concerning some of the
important differences hetween Liberia and Panania, on the one hand,
and the eight ship-owning nations elected by the Assembly, on the other
hand, 1heg torefer i~iteralia to certain publications of the United Xations
and to two reports by committces of the United States. The publications

of the United Xations are a book in the Uirited Nrrtioiis Legislative
Series entitled "LawsConcerniizgthe~VationalilyofShips" and a supple-
mentary volume to this collection. These books reprocluce the texts of
tlie various national laws on the subject. One of the United States
committees to which 1 wish to refer submitted a report to the United
States Department of Commerce through the National Academy of
Sciences. The report is entitled "The Role of the U.S. MerchantMarine
in hlutionaLSecurity". It describes the extent of United States control

over American-owned sliips iinder Panamanian and 1,iberian flags, as
25362 SThTEZlEXT OF >IR. SEYERSTED(soH\vA\')-~~ IV 60

compared to the modest control exercised by the flag countries. The
report may be fouiid in Publication No. 748 of tlic Niitioiial Academy of
Sciences and was published in Wasliington, D.C., in 1959. 1 refer especi-
ally to pages 55 to 60.The li~streport to wliicli 1 iriiglit refer isone by
the Interstate and Foreign Coiiimerce Committee of the United States
Senate. It can be found in 81st Congress, 2nd Session. Final Refiort of
!/tel~tlerslnlrrliForeign CommerceComniittee,IYnshittgto~r .950 and 1
refer to pages 65 and following. 1 do not believe it is necessary for me to
take op the tiine of tire Court by quoting from thesç or other publica-
tions. Ijut 1shall, of course, be glad to submit them to the Court, should
it so desire.
Some othcr Governnieiits have already recalletl tliat the samc
distinction as was made by the Asscmbly in electing the members of
the Maritime Safety Committee was made by tlie Gcrieva Confereiice
which adopted the IMCO Convention in 1948, when it designated the
members of another principal organ of the Organization-the Council.

r\rticle 17 provides that the Couiicil shall consist of 16 members, of
which "six shall be governrnents of the nations with tlie largcst interest
in providing international shipping services". The Article provides
further that "in accordance with the principles set forth in this Article
the first Council shall be constitutecl as provided in Appendix 1 to the
present Convention". And Apl>en<lis1 provides that the six members
referrcd to shoiild be Greecc, the Netherlands, Norway, Sweden, thc
United Kingdom and the United States.
Kefore this list \vas adopted by the Conferericc, the delegate of
Panama, which at that time was ranking fifth on the list of registered
toniiage, argued that Panama was entitlcd to a seat oii the Council.
Howe\~er lie rcceived no su~vort from other deleeates. and Panama
was not included in the list.'iiiforniation on this {;oint 'may be fouiid
in dociiiiient E/COKF.4/SR Keviscd, pp. 57-59.
Those who cstablished the IMCO Convention iii 1448 have thos
themsclvcs recognized the sl>ccial position of Panania Cs'compared to
the othcr countries. And thcrc is no evidence that tlicy iritcnded to
instriict tlie Assemblv to takç a diffcrcnt stand in elect-nr: the members
of the ivlaritinie safety Committee. On the contrary, in Article 28,
relating to the compositioii of tliis Committee, thçy expressly used
the word "elect". And this word does not appenr iii Article 17 (a),
rclating to the six inembers of the Council. Article 17 rnerely says
that "the Coiincil shall consist of sixteen Xembers and shnllbecosiposed
RS /ollows". And Article 18, relating to the coml>osition of subsequent
Coiincils, says that "thc Council shall rfeielermine-deielern~iiie-fortlie
purposc of Article 17 (a), the Afernhcrs, go\,erriincrits of nations witli
the largest intcrest iii ]>roviclinginternationalshipping services".
It is truc that in certain othcr respects it is irnl>ractical>lcfor tlie
Organization to rely iipon a discretionary decisioii by a deliberative

orgaii. In siich cases it inay be iiecessary to resort to an automatic
test. Thc drafters of the Conveiition themselves fouiid it necessary to
resort to such a test with regard to the question of tlie date iipon
mliich the Convention was to enter into force. Article Go of the Con-
veiitiori l~rovides in fact that the Convention "shall enter into force
on the date when twenty-one States, of which seven shall each have
a total toiiiiage of not less than one million gross tons of shipping,
have hecome parties to the Convention...". 1 woiild like to cmphasize that iii this case, where the drafters of the Conveiitioii considered it
essential to have a simple test, they chose a form of words which is

difierent froin those employed in Article zS. Indeed, they chose the
ternis which are norinally used when one wants to refer to registered
tonnage.
'fhe Assembly, too, has resorted to such tcrms, wlien at its first
session it made a provisional decision on the apportionment of the
expenses of the Organiïation among its members, in accordancc witli
-4rticle31 (b) of the Convention. Inits Resolution A.zo(I), the Assembly
decided that cach member should contribute a basic assessinent,
apportioiied oii tliï same scale as the budget of the United Nations,
plus an additional nssessment "determined by its gross registcred
tonnage as show11in the latest edition of Lloyd's Register of Shipping".
Thcse terms arc still niore categorical, and still more differïnt from
those einployed in Article 28. But it may be interesting to riote that,
beforethey wcrc adoptcd, the Norwegian representative in the Asscrnbly
Finance Committcc suggestcd that Liberia and Panama slioiild only be
required to pay the basic assessmeiit, not the additional assessnient.

However, this idea was disapproved of by the representative of Liberia,
and it \vas therefore not giveii further consideration by the Coininittee.
In both these examples which 1 have cited, the drafters of the Con-
vention and the Assembly, respectively. wanted for practical reasons
a simple or even a mathematical test, and they chose their words
accordingly. hly Government is convinced that had the same drafters
wanted this siniple test for election tu the Naritime Safety Committee,
they woiild have used the same \vords in ..lrticle 28. But they did not
do so hecause they rightly considered it neither necessary nor appro-
priate to bind the Assembly for al1 time to a mathematical criterion
in these important clections.
Ilr. Presidcnt, Hoiiourable Members of the Court, 1 have now con-
cluded the presentation of the principal conclusions of my Government,
and 1 woold like tu summarize it as follows.
Tlic Assembly is ciititlcd to cxcrcise a certain amoiiiit of discretion
iii electing the mcmbcrs of the Maritime Safety Committce, by taking

into considcratioii al1 those facts and relationships wliicli togethcr
constitiite a "ship-owning nation" having "an important interest in
niaritimc safcty". It is not possible to single out any spccial criterioii,
iii the scnse that the Assembly should be bound to elect those eight
nicmhcrs wliich satisfy this particular criterion on a ~~iirclymathe-
niatical tcst,.tliiis dcprivirig it of the genuinc choice which is an inherent
element in ail election.

II

1 shall thcii, \i.itli your permission, hlr. President, pass oii to the
second part of the Oral Statement of my Gorernment.
Some of the leariicd 1Zepresciitatives who have preceded me in this
presentatioii have inaintaiiied that the Assembly was boiiiid to aliply
one sif~gle criteriot&.This makes it iiecessary for me to make the
stibsi<liary observation that should the Court, despite the words em-

ployed in Article 2S and despite the other reasoiis 1 have indicated,
hold tliat Article 28 does impose upon the Assembly one siiigle test,
my Governmeiit siibinits tliat this test must be owrtersltip rather thanregistratioii. And ownersliip must be ownership by getzzritzeinterestsof
the country concerned. This is the test which coiiies closest to the
actiial words used: "sliil>-owning nations".
Lt would not he in accordaice with the natural nieniiiiig of the

adinittcdly imprecisc words of Article 28 to term a hlernber a large
shill-otvniiig nation, if iieitlier itself nor its citizeiis or companies
domiciled in and operatiiig from that country are genuine owners of
a large amount of shij>ping. Even if the Assembly is considered obliged
to "elect" by one single standard, this standard iiiiist be a real one,
and not based upon mere iiominal ownership, which, \vc submit, does
not necessanly reflect an "important interest in maritime safety".
3ly Governmcnt therefore submits, as its subsidiary view, that if it
is held that the Assembly is bouiid to apply one siiigle test, this must
be the test of ownership by genuine interests of the country concerned.
It is for the Assembly to jiidge wliich members satisfy this test. And,
in oiir view, the Assembly excrcised this jiidgment in a correct manner
wlien it elected those coiintries which it did elect. in prcfcrence to
I.il?eria and Panama.

[Pnblic heuring O/ 25 A$ril 1560, aftcrnoon]

hlr. I'resident, Honourable hlembers of the Court, at the last session
1 submitted the principal contention of my Government. which is that
the Assembly had a certain measure of discretion in sclecting the eight

largest ship-owning nations, and that it is not bound ta apply one
siiigle criterion to the exclusion of al1 others. 1 then siibinitted the
siibsidiary view of my Goveriinieiit, which is that, should the Court
consider that the Assembly was obliged to apply one single test, then
this test must be owiiership hy genuine national interests.

My Government would have preferred to stop its argument here-
as it did in its Writteii StateiiientHowever, in their i\'rittcri and Oral
Statements, the honourable Kepresentatives of some other Governments
maintairi that the Assembly was bound to apply solely the test of
registeredto~ztzage . lthough my Government believes that this-for a
number of reasons, which 1 have already indicated-would imply a
violation of both the \vords and the spirit of Article 26, and would
not be in harmony witli the purposes of the Organization and the
Maritime Safetv Committee. 1 woiild likc. in concliisioii. to inake some

is to be applied as a single test. .
hly Government submits that, even in this case, the Assembly could
not-in the application of Article 28-indiscrirninatcly accept asy

registration, without looking at the realities behind it aiid the applicable
rules of international law.
It is?lotin accordance with sound principles of law to let the right
of a country depend excliisi\,ely iipon facts whicti it is within the
excliisive power of the Govcrnment concerned to crcate. Shoiild one
coiisider such a criterioii to provide a single test for cstablishing certain
iiitcrnntional rightsof the State, one miist at least ascertain that the State has excrciscd its powcr within certain limits laid down in inter-
national law. Otherwise, one would arrive at complete arbitrarincss.
t\s \vas pointed out by the lcarned liel~reseiitative of the Xetherlands
this morning, this Court has already had occasion to recall that:

"..iriternation~l practice provides inaiiy exampl. of acts performed
by States in the exercise of tlieir domestic jurisdictioii which do
not necessarily or aiitomatically have international effcct, which
are iiot iiecessarily hiiidiiig on other States or whicli are binding
on them only subject to cerlnirrcon~lilioris".

'Thequotation is from the iVollebohmcase, I.C.J. Keporls Iyjj, page 21.
Orle of the clcarest examples of this has heen providcd by the Court
itself in its Judgment in the A'ottebohmcase between Liechtenstein
and Guatemala, where the Coiirt held that Giiatemala was rio1obliged

to recognize a former German citizeii-who had ,beeii domiciled in
Giiatemala for nearly forty years-to recognize him as a citizen of
I~iechtcnstciri merely becausc tliis country had natiiraliïed him under
its own law. Althoiigh the Coiirt of coiirse is well acquainted with its
own Jiidgment, 1 hope 1 shall be forgiven if 1 recall some of the
statements made thcrein, in addition to the oiie wliich was quoted by
the hoiiourable Representative of the Xetherlands this moming. The
Coiirt stated. igileralin:

"According to the practice of States, ro arbitral and judicial
decisions and to the opinions of writers, natioiiality is a legal
bond having as its bases a social fact of attacliment, a genuine
corriieclionof existence. intercsts and seritimcnts, together with
the existence of reciprocal rights and duties. It may he said to
constitiite the juridical expression of the fact that the individiial
ul~on whom it is conlerred, either directly by the 1aw or as the
result of ail act of the aiithorities, is in fact more closely connected
with the popiilation of the State conferring nationality than with
that of any oiher State. Conlerred by a State, it only entitles
that State to exercise protection vis-à-vis another State, if it
coiistitiites a translation into juridical terms of the individiial's
coiiiiectioii with the State wliich has made him its national."

And there is a fiirther (luotatioii, whicli 1 would like to read:

"The Court must ascertain ... whether the factual cofttiection
hetween Notteholim and Liechtenstein in the period preceding,
contemporaneous witli and lollowing his natural<zation appears <O
be sufficicntly close. so preporzderaiitin relation to any connection
which mav have existed betweeii him and any other State, that
it is possible to regard the nationality conlerrëd upon him as renl
and cfîctiuî, as the exact juridical expression of a social/acl of
cor~rrectionwhich existcd ]>re\~ioiislyor came into existence there-
alter."

'The quotations are froin I.C.]. Reports 1955, pages 23-24.

It may he notcd in passing, although 1 do not propose to dwell on
this aspect, that here the Court deals with a point which is similar to
that raised by the learned Representative of Liberia at the end of his366 ST.ATE>lEST OF &IR. SEYERSTED (SORWA\.)-29 IV 60

Oral Stateineiit; iiamcly, the questioii at what tinie slioiild the facts
wliicli coristitiitc the "gciiiiiiic link" csist--hefoor :ifter registratioii?
1rithe Judgmeiit which I quotcd. the Court hased its decision iipoii
tlieprinciple tliat the mere iiaturalization of a pliysical persoii does not
entitle the naturalizirig State to represent the person concerned inter-
nationally, if sucli naturalization does not reflect a genuine connection
between the person and the State concerned.
The I~tternationalLuai Commission. in its draft articles of 19j6 on
tlie Law of the Sea, employed a similar term with regard to the nation-
ality of ships. It provided. in Article 29 of its draft, that there niust
exista genuine link betweeii the sliip and tlie State whose flag it flies. Like
the Court iii the A'ottebohm case, the Coinmission did not define any
single criterion upon wliich such geriuine link would depend. It declared,
in its commentary to Article zg, that, as in the case of tlie grant of
nationality to a persoii, national legislation on the subject of nationality
of ships "must not depart too far frorn the principles adopted by the
majority of States. ivhich [and this I emphasize] may be regarded as
forming part of international law". In other words, like the International
Court of Justice had done with regard to physical persons, the Inter-
national Law Comniission considered with regard to ships that a pure

act of registration. altliough valid under domestic law, could not auto-
matically be invoked internationally. It must satisfy certain require-
ments laid down in international lan itself, and these depended, in the
view of tlie Commission, upon the principles adopted by the majority of
States.
The first Colijererrceon the Law O/ the Sen at Geneva in 195s took a
similar view wlien it coiisidered the draft articles of the International
Law Commission and tiirned them iiito the four Conventions on the Law
of tlie Sea. It was felt nt the Conference that States would not be able
to carry out their international obligations in respect of ships flying their
flag uiiless there existed a genuine link between the State aiid the stiip,
and, in ~~articiilar,iiiiless the State esercised effective jurisdictioii and
control over the ship. The Conference consequentlyadopted unanimously
the folloiviiigpro\.ision in Articlej of the Convention on the High Seas:

"Each State sliall îix tlie conditions for the grant of its nationality
to ships. for the registration of ships in its territory, and for the
riglit to fly its flag. SIiips have the iiationality of the State whose
flag they are entitled to fly. ï%ere l~iristexist n gcrrziinelink bet~eeew
theSlate ri~t<tlheship; in particzilur,theSlate mristeffectivelye.rercise
ils jririsdictio~innd conlrolin adiriiiiistrati\~e. technical aiid social
rnatters over sliips flyiiig its Rag."

The learned Rel>resentatives of Liberia and Panama. iii tlieir Oral

Statements, qucstioned this provision in respect of its status and its
contents. They maintained tliat Article j was not biiiding, since the
Convcntiori Iiad not yet beeii ratified. And they claiined that the contents
were too vague and that nobody knew what "genuirie link" implied. At
the sanie tiine the lionourable Kepresentative of Liberia suggested that
genuine ownership and a riumber of other important criteria did not
enter into the term "genuine liiik", and he based this upon tlie legis-
Iative history of the Article.
1shall deal \vitIl these points successively.368 STATEJIENT OP NK. SEYERSTED (SOR\V.~Y)-29 11' 60
who had prepared the clraft articles, and also by otlier speakers. Tliese
examples included interaliu the nationality and the doniicile of the owner
and his principal place of business, the nationality of the officers and the
crew, aiid the extent to whicli parties suing the shipowners might in

fact Iiave recourse to the courts of the flag States. But it was emphasized
that one could not point out aiiy one of these elements as indispensable.
It was the aggregate of these links which, together with tlie effective
jurisdiction and control, constituted the genuine link. And it \vas veqr
difficult to single out certain criteria as necessary aiid otliers as insigni-
ficant in this respect. It \vas the suni total which mattered. 1shall again
quote from the commentary of the International Law Commission to
Article 29. It savs:
"With regard to the national element required for perrnissioii
to fly the flag,a great niany systems are possible, but there must be
a minimum national elemeiit."

There is thus no basis for claimiiig that the contents of theVgenuine
link"consist of; or preclude, any particular criterion, exccpthat effective
jurisdiction and control. which were added to the text of the Interna-
tional Law Commission, are a condition sineqzcanon. Nor is it possible to
claim that the term "geniiine link" is any more vague than many other
general legal terins to wliich international conventions, like national
legislation, frequently resort. This too was clearly pointed out at the
Conference on tlie Law of tlie Sea, inter aliaby the special rapporteur

who prepared the draft article for the International Law Commission.
Further information oii these questions may be found in the Report of
the InternafionalLaw Commission coveriug its eighth session, pages 24
and 25, and in the Ogcial Recordof the United Nations Conlerenceon the
Luw of theSea, Volume IV. The statement by the special rapporteur is
reproduced in this volume at pages 32 to 3j.And 1stiall not take up the
time of the Court by rluotiiig any niore from these clocuinents.
Mr. President, if 1 may make one small digression, 1 would like to draa
attention to the fact tliat even national courts have in certain respects
found it necessary to disregard re istrations when they do not reflect the
realities involved. The Suprenie L? ourt of the United States took cogni-
zance of this fact in its judgment of 25 May 1953in Lnicritzeitv. Larsen.
In this jud,pent it is stated as follows:

"It is common knowledge that in recent years a practice has
grown. particularly among American shipolmers, to avoid stringent
shipping laws by seeking foreign registration eagerly offered by
some countries. Confronted with such operatioiis, Our courts on
occasion have pressed beyond the formalities of more or less nominal
foreign registration to enforce agaiiist Americari stiipowners the
obligations which our law places upon them."
As an illustration of such court practice, the Court cited Gerradin v.

United Friiit Co., 1933 American hfaritimr Cases, page 81. and Central
VerniontCo. v. Durning, 1935 American Maritime Cases, page 9. 1 shall
not take up the time of tlie Court by adding yet other citations to this
list, but 1 might add that, in tlie particular case before the Supreme
Court, the Court did not find it necessary to disregard the registration,
because it found that the ship, \%.hichwas flying the Danish flag, \vas
genuinely owned by a Danish national. ST.ATEZIEST 01.' MK. SEYEKSTED (soK\v~\\')-z~ IV 60 365)

Having made this digression, 1would like to make a concluding obser-
ration on the genuine link as part of international Iaw.
Xaturally, it is not the contention of iny Government that the regis-
tration of stiips in Liberia and Panama must be regarded as invalid in
any and al1respects. One cannot, of course, deny the de facto existence of
such registrations. And in a number of c;ises, 1 admit, registration in
Liberia and I'anama is, for practical purposes, taken at face value by

otlier Governments and by international organizations.
But, ;\Ir President, and this is important, any type of registration of
ships which a State sees fit to adopt does not confer upon that State a
riglit ors pri\-ilege in its relationships witli other nations and with inter-
national orgaiiizations.
Therefore, if the Court should consider that registered tonnage is the
only valid test for the purpose of determining the eight largest ship-
owning nations, 1siibmit that it is perfectly permissible, before applying
thistest, to scrutinize the types of registration used by the nations rank-
ing Iiighest on the tonnage list. And frankly, Mr. President, 1 can think
of no organ better placed to pass judgment on the merits of differeiit

types of national registration of ships tlinn the supreme body of the
Inter-Governmental hlaritime Consultative Organization.

IV

Mr. President, lionourable Members of the Court, this concludes tlie
final uart of mv Statement. 1 have entered iiito these auestions of tlie
iiit~:ri;:ati,,iinl\.iilidity of tlic regisr~itioriliip t~~inii;,, I fi:lt tliat 1
ougl~tru de:il iiut oiilv \i.ittlii.piiiici~i;ilsiibniii;ion of my oirn t;o\.ern-
mi2iit.hiit ;il3\vitIl tli~U~IIIIF~~OIIF III:,~bv flic I~~~riirl<v~~r~~t~~itati\~j
of other Governrnents. However, as you wijl have inferred from my pre-
ceding remarks, my Government for its part feels tliat it is not really

necessarv to enter into these auestions of what conditions a reeistra-
tiuiiiiiiiis;iticf!iiii<I~inrrrii:,t~r,ii:ilIn\r heciiisIIIuiir viv\r.,.Ar<cle23
<lot; not inipose iipon r1.c.\;scnihly :in! ;iutom:iiic critcrioiiiriitselectiun
of rlie iiicnihcrj ol llie .\l.iriririir S:ifct\' Cuininittce.
1 therefore would like, in coiicludi<g my Statement, to revert to the
original-and principal-submission of my Government. This is that
Article 28 allows the Assemblv a certain amount of discretion in its
el+ciii>iiuf tlie riii:iiihers of tlie:\lnritiSafety Committcc, :iiiJtli;it in
rlf.ciiiig rlie eight kirgcir diip-nwniiig ii;itioni, the :\jiciiil>ly Iini iii fnct
q~xt~rciiedtliis discretion \i.ithin ;in\. reason;,blc Iimit;itioiis t11:itcnii he
inferred from the words and the spiI'itof Article 28,as interpreted agninst

the background of the purposes of the Organization and the Maritime
Safety Committee as laid down in other articles of the Convention.
1 wish to thaiik you, Mr. President and honourable Members of tlie
Court, for your patience in listening to the statement which 1 have Iiad
the Iionour to make on behalf of the Norwegian Govemment. 9. ORAL STATEMENT OF Mr. VALLAT

[Public Iiearii~gof 29 April1960, afiernooi~]

May it please you, Yr. President and AIembers of the Court.
1 appear, as yoii know. to iiiake a statement on behalf of the Goveru-
ment of the United Kingdom.
This is the first occasion ori wliicli it has been my Iionour to appear
before this Court as the lie~reseiitative of mv Go\rernment, and 1 am

fully conscious of the priviiegc and responsibility of appearing before
tliis Iiigh tribunal.
Iii trying to fulfil my task, Mr. President and Members of the Court,
1 conceive that it is my duty to try to lay before the Court ail the con-
siderations which may seem to be relevant and wliich, in the vie~ of the
Government of the United Kinudom, mav hel~ the Court towards a
proper conclusion. 1 cannot accëpt, eithe; for ille Goveriiinent of the
United Kingdom or for those who oppose their views, the limitation which
has been suggested by the Govcniinent of Liberia in tlie passage which
appears on page 65 of the printed \rolume coutaining the Written State-
ments submitted to the Court. It is somemhat surprisirig to read there
the suggestioii that Members of IMCO who gave reasoiis during the
debate in the Assemblv for their line of conduct are uot free to invoke in
tlie prci,:nt proseé(1ing.i:irgtiii1i:!i,icl tli<:~ilicl iiot n(l\.-iiiscor \\liicl.
I I II: I I 1,:it.i.iont,~nil~l;it,.Il duritliv rcli,\,.,iitt>;~t<.iithe
.As~ciiil~lvIIIi~iiiiiil>iiiiiii<,ii >Ir. l'rc~~,Iciit ,tiiv siit:Ii Iiiiatil~li~,in
not be ifi tlie interests of justice aiid tlie su'ggeStioiiis based on a mis-

understanding .f the procedure and functions of the Court in its advisorv
capacity.
Tlie Gorernment of the United Kingdom are represented here today
in the spirit of Article 66 of the Statute of the Court. WC. and 1 take it
al1 the other ReDresentatiires uresent. aunear in order to comment in
whatever may s&m the most :;ppropriatêL~i.ayon the Stateinents. botli
Written ancl Oral, made by otlier States.
Tlie Government of the United Kinedom have studicd al1the \\'ritten

to the comments madé hcrc whicli Iiave beeii adduced in ail Ztcmpt to
sliow tliat the Committee is not aalidly constituted. I3ut 1 am boiind to
say that these argumerits aiid coinments do not carry conviction. In
my submission, they les\-e siibstaritially untouched theessential consider-
ations submitted by those nho maintain that the Coinmittec is validly

constituted. Accordingly. i see no reason to depart froni, or to repeat, the
consideraticins already submitted by the Government of tlie United
Kingdom in their \Vritten Stateinent, and mithout trotibliiig tlic Court
witli a repetition of what was said tliere, 1 wisli to innintain the reasons
and the conclusions made in tliat Statement. hly cliief purpose today is to offer comment on the arguments of those
who oppose the valid constitution of the Maritime Safety Committee.
In fact, the greater part of my remarks will be directed to the argiiinents

put forward on behalf of the Government of Liberia, whosc case has
been so ably and fully prcsented by the Representatives of that Govern-
ment. But this is inerely for convenience and my comments will in effect
be directed to tlie arguments of al1those who have attacked the clectioii
of the Committee. Indeed, thc main threads of their argiimciits are
substantially the same, and the criticisms of the arguments mide by
one of them apply also to thc arguments of the others.
Mr. President and hlembers of the Court, the issue in this casc is a
comparatively simply one. As was said at the begiiiiiing of this oral
hearing by the distingiiished Kepresentative of Liberia, 3lr. Weeks,
"it is exclusively one of the interpretation of a treaty". It is maintained
on the one hand

(i) that Article28(a) of the lhlCO Convention niakes iio mention of
and does not provide for any statistical criterion governing the
election of members of tlie Maritime Safety Comniittcc,
(ii) that the election of the Committee under that Article irnplies
room for the exercisc of jiidgment or discretioii by .the Asscmhly
of the Organization, and -

(iii) that the idea of an election is inconsistent with the application
of any automatic statisticalcriteriou giving certain countries
the right to be menibers of the Committee.

On the other hand, it is argued tliat there is "a maridatory doty to
elect" certain States accorcling to the statistical criterion of "tlie qiiantity
of tonnage which appears on the Xational Register".
That. in essence, hfr. President and Jlembers of the Court. 1siiggest is
the cssential issue that we have to consider.
Althoueh the essential issiie is a simvle one. the views of the 3Iembers
of the ~F~anization \\,ho argile in favour of the aiitomatic statistical
criterion iiidicate that thcrc is room for differences of opinion as to what
the criterion should bc. One test siiggested is the one which 1 have just
mcntioned, namely "thc quaiitity of tonnage which appcars oii the
National Register", that is, of coiirse, the register inaintained I>yeacli
individual State. Anothcr is tlie figiires for gross registcred tonnage as
they appear in Lloyd's Kegister of Shipping Statistical Tables curreiit
oii the date of the election. l'liese two tests are not in fact the saine.
A third possible test, whicli has been suggcsted by thc Government of
Liberia, is the tonnage of shipping on the Xational Register which is
nominally owned by natioiials of the State concerned, whether they be
natiiral person5 or corporations. A fourth possiblc test, also siiggested in

the \\'ritten Statement of the Government of Liberia (and 1 refer here
to p. jq of the printed \~olume)is "those nations which really are 'the
largest shipowning nations' ". That of course is not the siibmission of
the Government of Liberia biit it is interesting that those words are.
in fact, used in the IVritten Statcment of that Govcrnment.
It may be that the last of these criteria is beginning to approach the
true interpretation of Article 28 (a) of the Convention, biit il is not
simply a matter of statistics to say which are "really" the largest shil>-
owiiing natioris. For cxainple, it will I>eseen from the figiircs of 31 1)e- s.r~~eaiesr OF >IR. V.~LI.AT (u.K.)-29 IV 60
372
cember 1958. quotcd by the Governmciit of Liberia on pages 34 aiid 35
of the printed volume, that at that date 1,073 vessels flew the Liberian
flag and thair tutal gross registered toiiiiage !vas 11,074,559 tons. I3ut
accordiiig to the same statement only 514 ships, totalling 6,076,030

gross registcrcd tons, were registered in the iiame of Liberiaii iiationals,
whether they be individuals or companies. In other urords, only about
half of thc total gross registered toiinage of Liberia was evcii iiominally
owned by individiials or conipanics who might be regarded as Libcrian
nationals.
Even sot one has iiot arrived at the ainount of shipping wliicli caii
really bc regarded as Liberiaii becausc much of the shipping which is
nominally owiied hy Liherian nationals is beneficially owncd by the
nationals of otherStates. This was, in effect, admitted by the Representa-
tive of Liberia Iiiinsclf in his Oral Statement on the inorriirigof 26 April.
He explaincd tliat the web of ownership is orlewhicli canriot., in al1cascs,
easily be iintangled. lieal ownershil) caiiiiot be deterinincd on the basis
of any purcly statistical test. In my siihmission this fact serves to show
that the Assemhly of IhICO, and in the last analysis its Alemhers, have
the right aiid. indeed, the duty to esercise their own judgmcnt as to
whether iii reality the country in questioii is one of the eight largest
ship-owning nations. This right and duty of the Assemhly. of coiirse,
applies equally to al1Alembers of the Organization including the United
States, the United Kingdom and the Xetherlands, as well as Liberia
andPanama. Rut tliere is no doiiht that according to any test of bcncficial

ownership Lihcria and Panama would not hc among the eight largest
ship-owniiig nations.
111.President, from these general remarks 1 should like now to turn
to a more detailed consideration of the varioiis subjects that have been
discussed during thc course of this oral hearing. 1 think it is convenient
to use Part II of the N'ritten Statcment by the Gorerninent of Liberia
as the kcy for this purpose. That part dealing with the interpretation of
Article ZS(a) of the Conventioii does so iinder four heads. Thcsc arc:-

1. The içlni~datoryCharncterof Article 28 (a).
II. The Larges1.Shi$-OwningNa1io)ls.
III. "An Intportnnt Interest in Marilimc Sulely", and, to complcte
tlic heading, Ils Limited Releuaitce.

IV. Efects of theCorrectIizterpretntiotzof Article 28 (a).
1 think these Iieadings also cover tlic greater part of what has been
said during the present oral hearing by other Representatives. 'L'herelore,
1 hope that it will be convenieiit to hlembers of the Court if 1 comment
on each of these sections separately. 1 should, houwer, like to change
the order and to comment first on Section IV, then on Sections 1. III

and II iii that order.
First tlieri, as to Section IV which relates to the eHects of what is
called "the correct interpretation of Article 28 (a)". According to the
view stated hy the Government of Liberia iii tliis section, the concliisiori
to be drawn from their interpretation is that Liberia was "entitled to
election" to the Maritime Safety Cominittec. In other words, the effect
of adopting the interpretation suggested by Liberia, Panama aiid the
United States would be to give individual States a riglzt to be electcd.
Liberia ancl Panama are thus asserting their own claims aiid their own intcrest. They are secking to impose their own claim, as a niattcr of
right, on the other Nembcrs and on the Organiïation. Thcy are, iti this
way, also secking to deprive the Organization of any measure of dis-
cretion or judgincnt with respect to the election of the majority of the
;MaritimeSafety Committee. It is odd, 1suggest, that this attempt should
he made to deprive the plenary body of the normal function of protecting
the interests of the Oreanization.
Yet, it is argued thYatthe application of an automatic criterion is

necessarv in the interests of the Organization. On examination. this is
clearly &en not to be so. In particuïar, the criterion of gros registercd
tonnage would not, as seems to be implicd, provide a uniform test
equally applicable to al1 the Mernbers of the Organization. Each State
is responsible for the maintenance of its owri Xational Kegister of Ship-
ping. The registration of vessels is in the first instance depcndent on the
national law of each State. Conditions for registration may, and do,
vary from country to country. For example, under the law in force iri
the United Kingdom, registration of a ship is dependent on the British
nationality of its owner. To qualify for registration the ship must be a
British ship. In some countries, as we know, registration of a ship is

not dependent on the nationality of its owner.
Further examples of variations are ready to Iiand. If the Members of
the Court were to tum to the well-known volume in the United Nations
Legislacive Series entitlcd "Laws Cuncerning the Nutiu~rality of Ships",
published in 1955 ,nd the supplementary volume on the same subject,
puhlished in 1959, they would find that, qiiite apart from the rluestioii
of the nationality of ownership, the practice of States varies in regard
to such important matters as the definition of a ship for purposes of
registration and the limits of tonnage below which registration is not
required. This point is quite significant, 1 submit. In this connection,

the Philippines appcar to require al1 ships'of more than three tons to
be registered (1refer to p. 138 of the 1955 volume). 3fost countries, oii
the other hand, impose a rather higher minimitm. These variations
might well have significant results if the national register were made
the sole test of a nation's position as a sbip-owning nation and if, for
instance. the nation in questiott had a large fleet of small fishing boats
falling just below the minimum limit for registration. Practice differs
too in the matter of provisional registry certificates and as regards
Governmcnt-owned ships. Some countries rcgister Government-owned
ships, though not necessarily al1 siich ships, whereas othersdonot. Yet
if there is one category of ships which can scarcely he left out of the

account when intcrpretating the phrase "ship-owning nations", it must
surely be ships owned by the Governments of those nations.
Practice varies too as regards the extent to which charterers can register
ships as well as owners, and it is even possible-though of course rare-
for a ship to appc- -on two National Registers a. one and the same
time.
Can it, therefore, reasoiiably he held tliat an international organ-
ization, in electing members to a body such as the Maritime Safety
Committee. must he bound bv the action of each of its members in
1.!:ing d<i\i.ri;oii(liri<>iiifor rcgi~lint;aiiiiiaiiit.~iiiiitsuwn S:,risii;~l
I<vgi>t,r of !+I.I~J~~II1I=~I~Z~,r \Ir. l~rr~i<l~~aitd \l~nihrr; oi II),L'oiirr,

l t il iill 1 nt tr:s1l t lx ni! ~II~~~~II~~II~~~Irzx~ii.
ization in effect at the mercy of individual States in that way.374 STATEJIEXT OF IlK. \.r\LLAT (ti.h..)-29 IV 60

It niay be recalled, in passiiig, that in tlie Notteboh?ncase, which has
already bccii cited before the Court, this Court did riot regard itself as
bound hy the unilateral act of a State in the graiit of its nationality to
an iiidividiial.1 suggest that still less is it right that an international
orgaiiizatioii shonld be regardcd as bound in this respect bythe unilateral
act of registration.
I subinit that in a case such as the present where the intcrests of
an orgaiiization as a whole arc involvcd (and not the liabilities or
duties of the indiridual State) it would be unrcasoiiahle to regard
the Iiands of the organization as heirig tied by the Iaw and action of

the individual State.
>Ir. l'rcsident, Nembers of the Coiirt, as 1 was sayirig in the previous
portion of my statement, the practice in the inatter of registration
varies considerably from State to State according to the national laws
of tliose States, and thereforc, in my suhmission, it would be unrea-
sonable to regard the hands of an international organizatiori as being
tied hy registration under thc iiational laws of the individual State.
Likcwise 1 sobmit that it \i.ould be unreasonable for the hands of
the Organization to be tied pcrmanently by its constitution to the
action of ci private enterprise siicli as Lloyd's IZegister of Shipping,
which acts independeiitly of the coiitrol of Govcriiinents or of the
Orgaiiizatiori. The statistical tables produced by 1-loyd's Register of
Shipping are prepared on its own responsibility. Infortnation for the

tables is derived partly from Governments, partly from the Society's
own survcyors, and partly from information provided by shipowners.
There is rnom Iicre perliaps for crror, and certaiiily for differences of
assessmcnt. Thus, not only may there he differenccs betureen the bases
on ahich national registers are prepared, but there niay also be differences
between the hases on whicli tliose registers and the Lloyd's Register
of Shippiiig Statistical Tables are prepared. For esample, the United
Kingdom liegister of Sliipping includes vessels down to a gross tonnage
of 15 tons, whereas the relevant tables in thc Lloyd's Kegister of
Shipping Statistical Tables for 1958 do not includc sliips of less than
~ootons gross. It may well hc askcd, therefore, ivhcthcr it is reasonable
to regard tlicse Statistical Tables as being concliisi\~c-and that is
wliat is said, 111. President, conclîrsiue-for the ~>iirposcsof election
to tlic Maritime Safety Committee.

Xow therc is another respect iii \\,hich the automatic applicability
of the Statistical Tables is open to scrious doubt. Altlioiiph the Tables
for 1gj8 werc published in Xoveinber, they wcre hased on the gross
tonnagc of ships entered in Lloyd's Rcgister Book as printed and
piihlished in July of that year. The election of members to the Maritime
Safety Cornmittee was Iieltl on 15 January 1959. This was aboiit six
moiiths after the date of piihlication of tlie gross tonnage of ships on
which the Statistical Tables for 1958 were based. Wliçtlier the figiires
puhlished in July of 1958 wcre tlien completely 1111to date I cannot
Say, but haviiig regard to the ordinary proccsscs involvcd in the col-
lection of information, its [irinting and ~)ublication, the chances are
that eveii at that datcat the date of publicatioii of the figurcs-
there had already been changes in the gross tonnagc of sliips on the
Xatioiial liegisters. It is ccrtaiii that there must have been changes

in thc gross tonnage of ships on the Xational liegisters hetween July
19jS aiid the election field on 15 Jaiiuary rgjg. However, to say that the Assembly of the Organization is bound
by the coiiditions laid domn in Article 28 (u) does not answer the

question now before the Court. In the submission of tlie Government
of the United Kingdom, the conditions laid down in that Articlc do
iiot provide any automatic criterion. 011 the contrary, as in the case
of Admissions to the United Nations, a ineasure of judgment or discretioii
is left to the Assembly in determining wliether particular States fullil
the conditions and should bc elected to the Maritime Safety Committee.

[Public hearing of 2 May 1960. morning]

Mr. Prcsideiit, illembers of the Coiirt, 1 am sure that wc al1 note
with regret the absence of Sir Hersch Lauterpacht from the Court,
and particiilarly the reasons for it, and I hope 1 müy I>eforgiven for
expressing the wisli that he may have a syieedy and successful recovery
and retiirn to the Court at an early date.
May it please you, hlr. President aiid Blembers of the Court, 1 sliould
now like to continue the exposition which 1 began on Friday aftemooii.

Pediaps 1 may start with a hrief summary of what 1 was then saying.
The Court will recall that 1 explained my intention of commenting
on the statements already made under the followiiig four headings.
First, the cffects of what may be called the aiitomatic interpretation
of Article 28 (uj; secondly, the alleged mandatory character of that
article; thirdly, the significance of the expression "an important interest
in maritime salety", and fourthly, the nieaning of the "largest ship-
owniiig nations". It will be remembered that the subjects correspond
to Sections IV, 1, III and II respectively of the \Vritten Statcment
submitted by the Government of Liberia.
In coiincction with the effects of the niitomatic interpretation of
Article 28 (uj, I had pointed ont that the United States, Liberia and
Panama were seeking to assert, as against both the Organization and
its Members, the right for certain individual States to be niembers of
the Maritime Safety Committee, aiid that, if their view were accepted,
the plenary body would be deprived of the normal function of protecting
the interests of the Orgaiiization.
Moreover, the application of an aiitomatic criterion dependent on

gross registered tonnage, whether on the basis of figures supplied by
tlie individual htembers of the Organization or taken from Lloyd's
Register of Shipping, woiild not be satisfactory or in the best interests
of the Organioation. Among the reasons for this conclusion were thc
following.
First,Natiorial Registers of Shipping art. maintained by States on
the hasis of their own lawç: la\vs governing registration differ consi-
derably from State to State. National registration, thereforc, does not
provide a uniform test for al1 Xcinbers of the Organization.
Secondly, so far as Lloyd's Register of Shipping is concerned, the
figures are produced on a basis which differs in somc measure from
that of the National Registers and are inevitably out of date by the
timc the electiori to the Maritime Safety Committee takes place.
Accordingly, tlie Statistical Tables, produced on tlie hasis of Lloyd's
Register Book, cannot provide a satisfactory criterion antomatically
giving a State a right to be elected to the Maritime Safety Committee. STATEMEST OF hm. VALLAT,(U.K.)-2 v 60
377
Thirdly, 1submitted that it is a fact that interest in, and ability to
contribnte to, matters of maritime safety do not necessarily depend
on the amount of tonnage on the National Kegister.
1 had concluded my remarks on this Section by pointing out that
the Advisory Opinion of the Court on Conditions of Admission of a
State toMembership in the United Nations by no means answered the

question of interpretation now before the Court. No one claims that
the Assembly of IMCO is entitled to ignore the conditions governing
the election under Article 28 (a). The difference of opinion is as to
what those conditions are. In accordance with the Admissions case,
we maintain that the ilssembly of the Organization is free, within the
conditions provided, to exercise its own discretion or judgment.
Mr. President, reference to the Admissions case leads iiaturally to
the next part of my statement. This relates to Section 1 of Part II
of the Written Statement submitted by the Government of Liberia,
which deals with the so-called mandatory character of Article z8(n).
It is argued there that the language of Article z8(a) means that
the Assembly of IMCO is obliged to elect the eight largest ship-owning
nations and, of course, that this must be done on the basis of registered
tonnage. In the submission of the Government of the United Kingdom,
the words "of which not less than eight shall be the largest ship-owning
nations" were not intended to impose an obligation which nullifies
conipletely either the condition that the Governmeiits of nations to
be elected must have "an important interest in maritime safety" or
the right of choice inherent in the phrase "elected by the Assembly".
If properly construed, in my subrnissioii tlie words do not have that

effect.
It may ivcll be, Mr. President and Members of the Court, that the
trile intent of Article 28 was more iiearly expressed by the United
States delegation in a document dated 23 February 1948, which was
circulated at tlie United Nations Maritime Conference that drew up
the Convention now under consideration between 19 February and
6 March 1948. The dociiment to which 1 am referring is the one listed
as No. 52 among the documents transmitted by the Secretary-General
of the Organization in accordance with Article 65, paragraph z, of the
Statute of the Coiirt. The United States delegation said, at page 23
of that document:
"The provisions of the draft Convention are tentative, and are

intended to be developed in detail at contemplated technical
conferences. The Maritime Safety Committee, under the tentative
provisions,is to be comprised of fourteen Member Governmcnts
which the Assembly will select from nations having the greatest
interest in maritime safety, eight of which are to be from the
largest ship-owning natians and six ta be selected with a view
to adequate representation of other nations haring importaiit
interests in maritime safety and of major geographical arcas."
Noiv of particular interest in this statement is thc use of the words

"greatest interest", that is, greatest iiiterest in maritime safety, the
cornl~arative factor being clearly in the mind of the United States
delegation at that time. Also of iiiterest is the use of the word "from".
It is qiiite clear in this interpretation of the relevant clause that there
was, nt any rate in the view of tlie United States delegation at that
26 ST.*TE>iEST OF >IR. V.ALL.4T(u.K.)-2 \' 60
37s
time, an intention that there should be ari element of choice /rom the
nations having the greatest interest in maritime safety, eight of which
were to be frorn the largest ship-owning nations.
\Veil, that was the interpretation given by the United States delegation
to the text submitted to the Conterence which, as regards the words
now under consideration, was iiot, 1 think, materiaiiy different from
the final text of Article 28(a). If 1 may just give the reference, the
text submitted to the 1948 Conference is to be found in document

Xo. jû submitted by the Secretary-General of the Organization.
Now, as 1 should like to explain more fully a little later, froni a
purely grammatical point of view, having regard to the position of
the word "from" in the first part of Article zS(aj, and of tlie clause
"of which no less than eight shall be the Iargest ship-owning nations",
there is much to be said for the iiiterpretation given to the provision
by the United States delegation in 1g48. I3iit for the moment 1 diould
like to point out that, iii any event, tliere is no hint whatever in their
Statemezit that any automatic, statistieal test \vas to be applied by
the Assembly or that the Assembly \vas not to exercise a genuine
choice.
llr. President, aleinbers of the Court, it is interesting to coinpare
what was said hy the United States delegation at the 1948 Coiiference
with the comments made by the learned Kepresentative of the United
States at the present oralhearings on Thiirsday, 28 April. He maintained
that, while the opening words of Article 28(a) could properly he read
as giviiig the Assembly a right freely to choose fourteen from among
al1 the hlemhers of IMCO, tliis implication, flowing from the first ilse
of the word "elected", was elimiiiated by what he called the first
particular conditioii in Article zS(aj. He was, of course, referring to
the claiise "of which not less than eight sliall be thc largest shipowning
nations". Hc argued that Io let the iniplication of free choice override

thc specific limiting clause woiild I>cto friistrate tlic purpose of the
draftsmen of Article zS(a). Apart froni the obvious comment that
this view differs from what was said by the United States delegat'ion
at the Conference, there are two comments that may be made.
First, the remarks inade here hy the Representative of the United
States assume in effect that "tlie largest ship-owning nations" are to
he determined according to an aiitomatic criterion. Secondly, as a
matter of the pure order of words, if one looks at .4rticle zS(a), it is
apparent that the statement made ignores the previous condition.
which appears first in Article zS(a), this conditioii of course is that
the hlaritime Safety Committee is to be elected "from the Alembers,
governments of those nations having an important interest in maritime
iafety".
Surely there is some inconsistency between the remarks of the
United States Kepresentative to which 1 have referred and the con-
tention which he made earlier in his statement. that the eirht larrest
ship-owning nations are automatically deemed to have "an%nporïant
interest in maritime safety" for the i1ur11oseof Article 2S(a). May 1
explain a little more fully. . .
\Vhat was said by thc Rcprcsentative of the United States is of
some interest because he embarked on a grammatical treatment of

the language of Article zS(a). With the leave of the Court, 1 should
Iike to quote what he said, which appears on page II of the uncorrected record for Thursday, 28 April [cl.p. 3241. Refemng to the ikst half of
Article?S (a), he said:

"1 wish to direct the Court's attention to the phrase 'of which
not less thaii eight', and particularly the word 'which'..When the

language is analysed [he said], it is clear that the word 'which'
can onlv refer back to the word 'nations' in the ~m-~~~~~~lv J
pecedi& phrase reading 'those nations having an important
iiiterest in maritime safety'. In other words. of the nations havina
an important interest in maritime safety, nit less than eight shan
be the largest ship-owning nations."

Xow, tliat is what he said. From a purely grammatical point of view,
this construction appears to he right. Rut, if it is right, the effect on
the grammatical constmction of the whole provision is very interesting.
The result would Lieto include the eight largest ship-owning nations
among, and here 1use the words of the Article itself, "the Governments
of those nations having an important interest in maritime safety".
These words, however. are quite clearly goremed by the words which

precede them, iiamely, "elected by the Assembly /rom the Alembers".
If 1 may be forgiven for reading the whole of the language once more.
it reads as follows: "elected by the Assembly from the Members,
governmentsof those nations having an important interest in maritime
safety". Thus, if the clause relating to the eight largest ship-owning
iiations grammatically refers to the word "nations", then it is quite
clear that the clause is governed by the preceding words "elected by
the Assembly from the hlembers". On this grammatical approach it
seems that both tlic clauses which follow the words "elected by the
r\ssembly from the Mcmbers" describe a class of llembers from which
some of the fourteen members of the Maritime Safety Committee are
to he elected. It may be observed that this interpretation would be,
literally or grammatically, consistent with the wording of the second
branch of Article 28(a) which refers to the "remainder" to be elected,
which, as a matter of purely literal interpretation, could be either
more or less than six. In any case, it may be observed that the effect
of construing the words of Article 2S(a) as suggested, on behalf of

thc United States, woiild be to give the Assembly the right te choose
from among the eight largest ship-owning nations, and that this result
would be consistent with the words whicli 1 qiioted from the document
siibniitted by thc United States delegation in 1g4S.
Mr. I'resident, if 1may 1should like to return to the arguments which
were submitted by tlie Government of Liberia in their \\'ritten Statement,
and to make a few brief comments on them.
The attempt which is made at page 41 of the printed volume to ex-
plain iiway the use of the word "elected" by reference to the necessity to
have a point of time at whicli tlie relative size of ship-owning States one
to another could be determined carries, 1suggest, no conviction. Ifit had
bcen desired to fixa poiiit of time for the application of a statistical test,
such as the tonnage on the national register, it would have been very
simple for tlie draftsmen to have provided.that eight members of the
Maritinle Safety Committee should be those having the largest gross
tonnage at, for example, the first day of the session of the Assembly. Of
course the draftsmen did no such thing. Xow in particular they Say two things. First, tliat sl~ecialcoiiditioiis
override ~eneral ones and, secondly, tliat the largest shipowning nations
as a mattër of construction have ai im~ortant inferest inmaritime safetv.
The first assertion is based on an alÎeged similarity with the case cok-
cerning the Conditions of Admission of a Slute to iMembershi$ in the
United Nations, wliere the Court was invited to find in the general state-
ment of the responsibility and powers of the Security Council, contained
in Article 24 of the Charter of the United Nations, a power to override

the s~ecific reouirements for admission laid down in Article 4 of the
~li;irh:r. \\'c.ll.is nppnienr rh;it flit.rc13 iio p:ir:<llelt>ér\icenthc'specific
~xovisioiis iiinde r\rticlr4 of tlie dli;irtt:r conceriiiiig rlit: :iilniijsion
uf:LSt:ire 10 ~lemt~crsli~~ o~111c ~;IIIIC~ SI,~ionj iiir<:l'ttiontu flw ceii~~r:il
powers of the Security Eonncii, and the conditions concerning eGctions
to the Maritime Safety Committee laid down in Article 28 (a) of the
IhlCO Conveiition. We are not here concerned with eeneral ..wers over-
ri~liiigllte c.sc.rcist:of ;p?ciiic In8\vvrs.\\';ire c~~iict!riic\Iif11[lit:inlcr-
prct:itioii ~gicondiric~iiir<lntiiih.ro rlic esercisc of tlic pc,\i.<.rnt clectiuii.
\\'li:itliiC;u\.criiiiii:i<ifrlic I:iiitvil Kiiigtlc~*L!. i' 11i.itiiuf uiily iiiii.-t
.i jthte hc.uiii: of tlic cigrit I;,rgt.ît .iliip-oiviiiiign;t~iuii.-iriiiiiist :ilsu
II.I!.;IIIi~ii,~r~rI:iit ~itert-.$iin 11i;iriI11st::ifel\if il 15 IO qii:iIifv ior

election. Tliose, we suggest, are the terms of guidance given to the
Assembly in electing the members of the itlaritime Safety Committee.
To Say that the largest ship-owning nations have an important interest
in maritime safety is, in one sense, to state the obvious, but it by no
means followsthat a State with the largest tonnageon its national register
has "an important interest in maritime safety" ivithin the meaning of
Aiticle 28 (a). Of course, it is unlikely that any State would join the
Organization iinless it had, from its own point of view, an important
interest iii m;iritime safety. However, wliat is ari important interest from
the point of vicw of the individual State is not necessarily an important
interest from the oint of view of tlie Oreanization. As stated hv the

United States ~efegation in the document submitted to the ~kited
Nations Maritime Conference, whicli 1 have alreadv mentioned, the
.4ssembly is to select fourteen member Governments from nationshaving
the greatest interest in maritime safety. What, for the purposes of elec-
tion to the Committee, is an important interest must, 1 submit, be a
matter of degree whicli is left to the juclgment of the Assembly and its
JIembers.
1 submit tliat in the nature of things ail important interest in maritime
safety for the purposes ofArticle 28(a) must be determined on a compara-
tive basis, and mzrst be a matter for judgment or assessrnent by tlie
Asseinbly. Even if it were thought tliat that were iiot true in relation
to the first lialf of Article 28 (a), it is certainly true in relation to the

second hall. Therefore 1 suggest that therc is no reason for taking a
different view in relation to the first hall of Article 28 (a). Neverthelcss,
even if this view of the effect of the 1angu:igeof Article zS (a) is not taken,
it does no1 lollow that any State is entitled to election to the Maritime
Safety Committee as one of the eight largest ship-owning nations merely
by virtue of the gross tonnage of shippingon its National Register or any
other statistical test. If the riew should be taken, contrary to my sub-
mission, that as a matter of coiistmction the eight largest ship-owning
iiations are to be deemed to be included among the nations Iiaving an
important interest in maritime safety, 1 further submit that two conse-quences follow. First, as 1 have already pointed out, tlie effect of this
constiuction woiild be to include the eight simply ainong the members
cornmittee. Secondly, it would he Chestrongest possible indication tliat
the expression "lareest ship-ounin~ nations" should iiot be interpreted as
dependent on gro& regisiered tonnage, but shoiild have a- content
wliicli, in tlie judgment of the Assembly, would truly qualify the nations
as being ship-owning nations in a real andsuhstantialsense, which would
involv,e their having an important interest in maritime safety. Such
an interest. as I have already pointed out, by no ineans necessarilp
flows from a large registered tonnage.
Mr. President and blembers of the Court, now come to what is
undoubtedly the Iieart of this matter. \\'hatever viea is taken of tlie
relevance of the reference to an important interest in maritime safety.
we would probably al1 agree that the expression to which we should
direct most of our attention is the "largest ship-owning nations". This
is dealt with in Section II of Part II of the Liberian \Vritten Statement
on the interpretation of Article28(a).
It is scarcely necessary to answer seriatim every point made in this
connection by those who oppose the validity of the election. The gist
gross registered tonnage isthe test and then argue tliat it woibedwrongt
to rewrite the text by the importation of some differcrit conditioii or
criterion. I::ut the text does not use the word "registration" or any
language appropriate to registration. The expression iised is "ship-
owning nations". It is those who seek to substitute the test of gross
registered tonnage who. in my snbmission, are trying to rewrite the
words used in Article zS (a).
Xot only are they attempting to re-write the expression "ship-owning
nations", but they go even further.Having made the assumption, having
attempted to re\wite the expression, they then rely upon the amended
text as a basis for argiiing that the word "elected" should be given a
secondarv or subsidiarv meanina. In other words, at both stages of their

a meat deal of their argument is d'irectednot so miich to shiwincwhat
th: Cori\rentioiisays but what, in their view;the Convention ought%osay.
These simple observations, based directly on the language of the
Nevertheless, 1arn afraid tliat 1 feel boumfto comnient on a number ofcase.
the detailecl poirits or arguments urhich have been put forward. In fact
there are seveii poiiits oii which1 should lilie to comment and 1 shall
do so if 1 niay, one by one.
First, it is said thatifthere is serious doiibt as to the meaning of
Article ?S(a), that interpretation should lie preferred whicli gives full
valiie to the langiiage actually used and which is likely to contribute
to the effective working of the Organization and iiot to frustrate its
purpose. 1 have already submitted that the interpretation which we
maintaiii does give full effect to the lariguage of the Article and gives
fulleflect much better than the opposite view. As regards the purposes
and the effective working of the Organization, tlie difference betweeri
the opposiiig views is ~iotthe principle of interpretation but the effect
of its application. In the viewof the Govemmerit of the United Kingdom, STATEIIE$T OF MR. VALLAT (u.K.)-2 \.60 383

the purposes of the Organization are not so likely to be achieved I>y
the automatic statistical test of registered tonnage for the election of
members of the Maritime Safety Committee, but rather by the excrcise
of some measure of judgment by the Assembly which, after all, is
composed of al1the Members of the Organization. The Assembly should,
of course, be guided to some extent by the figures of registration but
if, in the opinion of the Assembly, a State having a large registered
tonnage is not in reality one of the largest ship-owning nations, it is
not only the right but also the duty of the Assembly to reject that
State as.a candidate-for election to the Committee.
There are very good reasons for this view. Registration, as has I~ecn
said here by several Kepresentatives, registration of vessels is no
guarantee of a geniiine link between those vessels and the State of
registration. Stillless is it a guarantee of ability to contribute in a
positive sense to drawing iip regulations and recommendations on the

subject of maritime safety. It by no means follows that, hecause the
application of conventions and agreements is often made dependent
on registration, ability to contnbuteto the work of the Maritime Safety
Committee must also depend on registration. On the contrary, it is
quite possible that the State with the largest registered tonnage might
be the least concerned with maritime safety and its lack of concern
with maritime safety might be one of the factors contributing to the
large tonnage on its Register. Therefore, in the submission of the
Govemment of the United Kingdom, it is unreasonable to Say that
the test of registered tonnage for membership of the Maritime Safety
Committee is most likely to contribute to the fulfilment of the functions
of that Committee or the purposes of the Organization. It is equally
unreasonable to suggest as a corollary that the State having the largest
gross tonnage on its Register should have the right to he elected to
the Maritime Safety Committee.

1 submit that the interest of a State in maritime safety is much
more likely to flow from, for example, benefical ownership of shipping
on its Registry than from the mere fact of registration. Real interest,
ability and technical éxperience are miich more likely to be found in
countries whose nationals reallyown large fleets than in countries
where, for the sake of convenience, such fleets are registered.
Now if 1 mav vass to mv second voint. It is armed that. because
registration is So' frequentfy used ii internationaï treaties; and by
writers, as a connectinf: factor hetween a State and a ship, its use for
the purpose of inter~reting an expression such as "ship-owning nations"
must be presumed unless the contrary can be proved. 1 suggest that
that is far from being a sound legal proposition. 1 shonld like to refer
to the article by Dr. Jenks in Volume XIX of theJournal of Com$arative
Le~islation (1937)which has been invoked in support of this argument.
A careful reading of the whole of that article, as opposed to the few
evtracts which have been cited, serves to show the following thrce

propositions:
(i) there is a considerable degree of confusion between nationality,
registration and flag, each being used for different purposes

as~a connecting factor;
(ii) the fact that international maritime conferences sometimes
use deliberately what Dr. Jenks calls, and 1 qoote from384 STATBMENT OF AIR. VALLAT (u.K.)-2 V 60

conventions they adopt, with reference to the connectinghe
factor;

(iii) that, where vagueiiess was iiot acceptable and uniformity
was desired. as for instance in the case of the series of Inter-
national Labour Conventions on maritime questions, it was
as the connecting factor.sly for the inclusio~iof registration

1submit that theclear distinction wliich appears, for example, between
the concept of ownership and registration is only sharpened by the
citation of a large number of international conventions and agreements
which make their apl>iicability depend on registration. The fact that
the application of conventions and agreements to ships is often made
expressly tu depend on the registration of those ships only serves to
stress the uniquechavacler of the expressioii "ship-owning nations"
used in Article 28ja) of the I1\1COConvention. No other convention
or agreement has been cited which uses this expression; nor has any
other case been called to mv attention. So far from urovinc. that the
words used must refer to reg&tered tonnage, surely thekaturd inference
is that those who drafted the Convention deliberately used different
language and did not intend to refer to registered tonnage. 1 siibmit
that it adds nothing to the argument to assert that "ship-owning
nation" is normally uscd to refer to registration when the expression
is not normally used in international agreements at ail.
tu say something about the practice of the Organization, there is oneon
more point which 1should like to make in connection with the suggestion
that it is necessary tu the effective working of the Organization that
the State with the largest registered tonnage should aiitomatically be
elected tu the Maritime Safety Committee. This suggestion seems ta
ignore the procedure under the IMCO Convention by which regulations
on maritime safety are to be adopted and submitted to Governments.
The implication or suggestion seems to be that, if a State is not repre-
sented on the Maritime Safety Committee, it will have no opportunity
for expressing its view on draft regulations. This, of course, is far from
the truth. There will, in practice, be ample opportunity for any lfember
of the Organization to put before the Maritime Safety Committee its
views on any particular matter in which it has a particular interest or
concern. Article 32 of the Convention expressly provides that the
Maritime Safety Committee shall invite any Member to participate,
without vote, in its deliberatioiis on any matter of particular concem to
that Member. 1 have no doubt that, if a Mernber has sufficieiit concern
on a particiilar aspect of maritime safety to submit its viewsin writing
to the Committee, it will be accepted as having shown sufficientconcern
to merit an invitation to participate in the deliberations of the Com-
mittee.
unahle to place its views before the Committee, that is not an end of the
matter because the Committee, by Article 30 of the Convention, has
tos ubmit its proposals for safety regulations through the Council to
the Assembly of the Organization. It is the iIssembly which, by virtue
ofArticle16, paragraph (i),ultimately has the functioii ofrecommending STATEJIEXT OF UR. VALLAT (u.K.)-2 1' 60 3%

to hlembers for adootion reeulations concernine maritime safetv or
amendments to ~uch're~ulati~ns which have been referred to it bi the
Maritime Safetv Committce throuah the Council. Therefore, reaula-
tions. before thévare recommended Foradoution. must eo to the AGem-
bly, in which ail Memberç of thc ~r~aniz'ation'are reiresented. When

the reaulations are before the Assemblv. Members wili, of course, have
as fulran opportunity to object or tomake constructive commcnts as
they would in the case of any proposa1 going before the plenary body
of an internatiorial organization.
For these reasons. failure to elect a hfember of 1MCOto the Naritime
Safety Committee ;il1 not deprive the Organization if the possibility of
benefitinc from such contribution as that Memher mav he able and
willine tomake on the subiect of maritime safetv.
.\rit1 fu~irtlil)~.\Ir. I'rt~i~I~i.~l, sl~uiiIikr t~, VIL,^ IO IICY pGt<tir<- t,ï
rli?Org:iniz;irir,n ii;t,li\vliicli I.AAI<. >I.<II riiitit,iit.iiiii~~~~ur C.Itlc

vit.\vsuf iI.w>c!\,lniu11i<51 rlw Y,,IICII~ 0V 11ct~~ccI~~>II.II I> a~rt<11tl~tt
in the interpretation of the constituent instrument of an infernational
organization the practice of the organization should be taken into
account. But once morc. this factor tends, if anything, to support the
views of those who accept the validity of the election of the members of
the Committee rathcr than the views of those who oppose its validity.
So far as there is any practice on thc specific point, it is that the Assembly
of the Organization deliberately took the view that it was not bound
either hy national registers or by Lloyd's Register of Shipping Statistical

Tables in connection with the election of the eight largest ship-oiining
nations.
The fact tliat the Members have implicitlyaccepted registered tonnage-
for the purposes of Article 60 of the Conventioii in my submission only
serves to underline the different attitude of the Organization towards
the different language of Article 28 (a).
Again, the fact that gross registered tonnage was taken into acccuiit
as one of the factors-an important factor, it is true-in elections to the
Council,the apportioningof the contnhutionsaudelections to theMaritirne
Safety Committee does not show that it is the sole obligatory criterion

for the clection of the eight largest çhip-owning nations. We do not dis-
pute that registered tonnage is one of the factors that should be taken
into account in the process of election, but ive do Say, as the Assem-
bly decided, that it is not the sole factor or sole criterion in determining
what are really the largest ship-owning nations. Thefact that the Assem-
blv elected to the Maritime Safetv Committee eiaht out of thc first ten

and the debite at the First ~éçsionof the Âssembly, also show that
it deliberately rejcctcd the criterion now pressed upon us by those who
op. .e the validitv of the election of the Maritime Safetv Committee.
lit tlii5iuiinviri~n. I ilioiil l Iiiitt<>rii<i~ti~~ ii I~;i~sii~g~ccrr~iincriri-
~iiiiis \rliicli liaic: iitIr\.tlled ;,rlicrt:li;inct.pl;ir?rl htlii1;~iviriiiiwiit
ui tlic IJnirt.<I<iiicrliiriuii:\rti~lc 55 ,,i III,:Convt iiri~~i\II :itiiriiiir Ii:ii
been made to thrcw doubt on the"tonc1usions drawn by them frÔm the
proceedings of thc First Assembly of IMCO. In this context, with the
indulgence of the Court, 1feel that it is necessary to refer to what actu-
ally happened at the first Assembly. The documents are already before STATEMENT OF nm. VALLAT (u.K.)-2 v 60 367

page Goof the printed volume, that consideration sliould be given to the
positionprevailing at the time when the IMCO Convention was drafted.
I accept this proposition. 1 also accept tliat the expression "the largest
ship-owning nations" appearedin paragraph I of ArticleVI1 of the draft
Convention as prepared by the United Maritime Consultative Council
in 1946. But this, of course, was not the end of the story. Account should
be taken, not only of circumstances at the date, say in October 1946,
when the draft Convention emergedfrom the United hlaritimeConsultative
Council, but also the circumstauces during the pcriod wlien the draft Con-
vention was under consideration and, in particular, in tiebruary and Alarch
1948 when the draft was being completed by the Geneva Conference.
In the 1946 to 1948 period, it is true that Liberia had no material
registered tonnage. But the position of Panama was quite different. 1
regret ta have to say it, Rlr. President, but it is a fact, there was anxiety
about the policies and practices of Panama towards the registration of
shipping, and it was believed that mere registration would, in relation

to Panama, be an unsatisfactory criterion in matters of maritime safety.
That, at any rate, was the view of the Government of the United King-
dom, and 1 have no doubt it was a view also shared by many other
Governments represented both on the United Maritime Consultative
Council and at the Geneva Conference.
It was also known that the shipping on the Panamanian register was
rapidly increasing and that this was not accounted for by ships which
were genuinely Panama-owned. Furthermore,it is a matter of record that,
although Panama claimed at that tirne to have a merchant marine of
approxiinately two aiid a half million tons and tlius to occupy fiftli or
sixth place in world tonnage, the United Nations Maritime Conference
held in Geneva in 1948 did not at that time consider Panama worthy of
being nominated as a mernber of the first Council of IMCO and that this
decision led to Panama's withdrawal from the Confereuce. In the light of
this history, it cannot be inaintained that those who drafted the IMCO
Convention were unaware of the risk, which it seems to be admitted has
subsequently arisen, of applying the automatic test of registration to
countries in the position of Liberia and Panama.
It may be worth pointing out that reliable figures for registered ton-

nage were not available in the period from the close of the Second World
War to the date of the adoption of the Convention in Alarch 1948. Sotne
figures, however, were of course available. The authorities of the United
Kingdom and, no doubt. the authorities of other countries had for ttieir
own purposes kept figures of ships on the registers of other countries.
The United Kingdom figures, which relate to ships over 500 tons, as they
were understood to stand on the register at the cnd of cach year, are of
some interest. According to the United Kingdom's figures-these are
Our own domestic figures collected by our own authorities-in 1939, there
was 722,000 tons gross on the Pinamanian Register; in 1946, the United
I<ingdom figure was ~,oSg,ooo; in 1947, it was 2,458,000; and in 1948 it
was 2,843,000. These figures show the rapid growth in the amount of
shipping on the Panamanian Register after 1939 and, particularly, in
the 1946 to 1946 period. According to the United Kingdom figures, in
1946, Fanama stoodeighth in the list of countries with the largest gross
tonnage, and in 1947and 1948 \vas in fourth position. Broadly speaking,
these facts were undoubtedly known to other Governments which took
part in the drafting of the IMCO Convention. It is perhaps also pertinent to consider the figures fro~n Lloyd'sRegister
oj Shipping. It will be recalled that the figures publislied by Lloyd's
Kegister referto ships over roo tons and are published originaily in July
of each year. The figure for the Panamanian registry, according to Lloyd's,
was 717,525 gross tons in 1939. No figurcs were published by Lloyd's
Register in 1946. The figure published in July 1947 "as 1,702,260, and
the figure publislied in July 1948was 2,716,468. Sn again it is apparant

from the figures published by Lloyd's that there was a considerable
increase in the Panamanian reeistrv.
'ï'll~r1%~cJII! n,,ruulli for~IOIII>~Ii:%III 1111~40 IO I+> pc:rio.II \V.LS
kii<i\i~iiliar rlii. I'.~~i.iiii:iii~ariici~i ;hip[iiiig \i...ir;ipidl!. iii~,rtasiii,o
I I I I tic :II:III f h 1 I I I I is II.,. .,uioni;iriî it.>l
according to ;é&tered tonnage would involve the possibility that
Panama would thereby become a mernber of the hlaritime Safety Com-
mittee. Mr. President, 1 mention these facts with no derogatory inten-
tion but only because it lias been suggested-quite wrongly-that the
situation with which we are now faced was neither known noi- foreseen
at the time when the Convention was drafted.

1 further suggest tliat having regard to tlie uiicertainty about figures
of registered tonnage in 1946, and to tlie circumstances generally, the
natural inference is that there was no intention at that time to rely on
the figureson the national registers. Circumstanccs show, moreover, that
there canuot possibly have been any intention at that tiine to rely on the
figures published by Lloyd's Register of Sliipping.
In this connection, 1 should, with the leave of the Court, like to refer
to the history of 1.loyd'sKegister of Shipping during the relevant period.
1 think that it is quite important. Owing to war, rio statistics were
compiled and published regarding the ships recorded in Lloyd's Register
Books forthe years 1940 to 1947. Then, in what was cded an appendix
to Lloyd'sKcgistcrBook {or 1947/1948, Statistical Tables were published

and these were based upon the entries in Lloyd'sRegisterBooks as printed
aiid publislied in July 1947. These Tables were published subject to a
acution as to their accuracy.
In passing, it is interesting to note the iurtlier caution given by Lloyd's
Register of Shipping in the Statistical Notes on those Tables that they
did not reflect any changes in the British Commonwealth of Nations or
elsewherefor which the operativedates had been bctweeii I July 1947and
the date of publication of the Tables. Thisillustrates again very pointedly
how unsatisfactory as an automatic test would be tlie figures published
by Lloyd's Register of Shipping in July with respect to an election held,
say, in the following January or February, because similar changes in

the figures of the two dates could always occur.
In the Statistical Notes relating to the figures for July 1947, published
in Lloyd's KegisterBook, the following was also said:

"In view of the exceptional changes in the distribution and
allocation of ships which must occur after a prolonged war, and
which are continuing. the figuresin the Tables should be regarded as
indicating an intermediate stage in the transition from wartime to
peacetiine conditions. It is hoped that figures based on the 1948/49
edition of the Register Book, which will be compiled as soon as
possible after its publication,will furnish a more accurate record

of the position of the merchant fleets of the world." ST:\TII>IEXT OF AIR. VAI,Lr\T (u.K.)-2 \-60 3S5
Therelore, it appears tliat in 1946, "lien the expression "the largest

ship-owning nations" was first used in the draft Convention, 110,1 say
no figures of gross tonnage published by 1-loyd's Register of Shipping
were available, and that in March 1948, when the Convention was con-
cluded, al1 that was available were unreliable fi res and an expression
of hope that in future more accurate figures wou Pd he published. In fact,
when the Statistical Tables based on the figuresin Lloyd'sRegistn Book
of July 1948 were eventually published, long after the signature of the
IMCO Convention, the figures based on the July 1947 edition of the
Register Book were regarded as so inaccurate that Lloyd's Register of
Shipping advised that they should not be used. How then, in these
circumstances, can it possibly be said that those who drafted the IhICO
Convention intended to relyon the figures puhlished by Lloyd's Registerof
Shipping in their Statistical Tables as being the criterion for determining
the eight largest ship-owning nations for the piirposes of election to the
Maritime Safety Committee?

[l'ublic hearing ofz May 1960, afternoon]

&Ir. President. Members of the Court. this morniiie 1 w., discussinr:
ti\c puinfs rcl.itiiig 10 rlic.iiitcrprc~1:iriutlii~:s~>re;iioii"kirgest s~ii~l:
ouninr ii;llions" iise(liiihrticlc 28/<1,of tlsc I.\ICOConvciiti~ii. I slioiilrl
now like to pass to my sisth point 'which relates to the appeal to the
procedure for electing the Council of the Organization. It has been
suggested that the procedure provided for the Council in some way
opens the door to the interpretation of the word "elected" so as to have
a dual meaning in Article zS (a). 1 submit that the appeal does not help
the arguments of those who contest the validity of the election of the
Maritime Safetv Committee. On the contrarv. it shows that where the
dr;~ftt.rsof the ~uiiv~~iitioicioniidcrcIIncccs'ir).. tliey ivcrcqiiirecapabli:
of I:<yiiigtlow~i;iipeci.tl l>ri,ci<l~i.tii<of <listiiigui.ilii;iiiliry {liciii
Ariirles 1: :ilidIS.I~erwecn 1116procciliir~ for ,l.-rçriiiiiiatioii bv rlic(:oiiii-
cil and the ordinary process of election by the Assernbly. The provision

of a special procedure for the determination of certain classes of mem-
bers of the Council is in very marked contrast with the simple procedure
of election which is provided in Article z8 (a). The natural conclusion to
be drawn from this comparison is that by Article zS (a) it was intended
that the word "elected" should be used in its ordinary sense, thus
leaving a measure of choice or judgment to the Assembly.
Now if 1may pass to my seventh and Irist point on the interpretation
of the expression "the largest ship-owning nations", it relates to the
nature of the expression itself. In the Witten Statement of the Liberian
Goremment, the expression has been described as "vague terminology"
and, to quote again from the Liberian Statement,it is described as, and
these are the words, "so general a provision as 'ship-owning nations"'.
As these remarks emphasize, the expression is indeed broad. If those
who drafteù the Conventioii Iiad intended to Iay clowii the specific test
of gross registered toiinage or any statistical test, tlieycoiild easily have
done so. But, as has already been pointed out, the plain fact is that
those who searcti for a rigid criterion in terms of the gross tonnage on

the national register or figures to be derived from Lloyd's Register of
Shi@ing Statistical Tables are trying to write provisions into the Conren-
tion which are not there. Wliat they seek to do mighf. 1 Say miglzt,as amatter of policy, be achieved by rules of procedure, which might be
adopted by thc Assembly forits own guidance but, 1respectfully submit,
not as a ~ro~osition to be laid dom bv this Court.

>Ir. présidéntand hlembers of the CO&, iii tlie light of these comments
on the various arguments that have been submitted by those who contest
the raliditv of the election. 1 submit that it is uiinecessarv. strictlv
speaking, <O refer to the trhaux préparatoiresbecause it is piain both
that the language of Article 2S (a) in its natural and ordinary meaning
does not require, andthat itwasnot intended torequire, that the Assembly
should apply an automatic criterion. But since reference bas been made
to the travaux préparatoiresby the Representatives of other Govern-
ments, 1 should like to add a few remarks about tlieni. Indeed, 1 have
already mentioned the statement niade by the United States Delegation
which is referred to in Document Xo. 52 submitted by the Secretary-
General of the Organization. There is no need now to say anytliing
fnrther about those remarks except that they clearly do not support the
view of tliose who cliallenge the validity of the electioti.
In the travaux préparatoires, 1 have not found a single statement that
there should be any automatic criterion for tlie purposes of the election

of any members of the Maritime Safety Committee or that registered
tonnageor any other statistical criterion should be applied. So far as
there is any indication, it seems to be in a contrary sense. Certain relevant
passages are conveniently set out in Aniiex I to the IVritten Statement
submitted by the United States of America. These appear on pages 157
to 160 of the printed volume. With the permission of the Court, Mr.
Prcsident, J should like to refer to some of the remarks wliich are there
recorded as having been made at the sixth meeting of the United Maritime
Consultative Council held at Washington on October 28,1946.1 should
like to refer to substantial portions of the record, asink it is necessary
to do so in order to show what was beiiir: said. Now the Council was.

of the IMCO Convention. Now in parakaph ~oj-and 1 am referring
here to the paragraphs of the rccord-in paragraph 105 of the record,
it is said that MT.Koerbing of Denmark "maintained his point of view

that if the number of participating ship-owiiing nations could be raised
from seven to nine and the total number of member Governments in
the Maritinle Safety Committee from twelve to fourteen, the lndian
alternative draft would be acceptable to him. He stressed the interestof
seataring nations in the work done by safety at sea conferences." And
1 should like respectfully to cal1 attention to the words "interest of
seafaring nations".
In paragraph 107, it is recorded that the Indian delegation "wished,
in connection with the importance of the Maritime Safety Committee to
seafaring nations, as explained by the Danish delegation, to point out
the interests that other countries had in these matters. These interests
could be divided into three main categoriesW-the categories are not
relevant to my purpose and 1 omit them-but, continuing the quo-
tation from the record: "Ttiese three categories, the Indian delegate
felt, would make it clear how vital matters of maritime safety could be
to non-seafriring nations, that is to say to nations who did not actually
own or have a large number of merchant vessels." Again, the key is STATE>IEST OF &IR. VALLAT (u.K.)-2 V 60 XI1
"seafaring nations"; and tliat expression coming from the mouth of the

Indian delegate is very interesting when placed side by side with the
words "who did not actually own or have a large number of merchant
vesseis".
Frorn these remarks it would seem tliat the distinction being dram
between shin-ownine. and other. nations vas not based on reeistered

orto any other statistical test. Now, no comment seeGs to have been
made to the effect that eitlier the Danish or the Indian delegation were
drawing a wrong distinction. Certainly no criticisni was made by Mr.
Morseof the United States, who is recorded in paragraph IIO as having
said "that the figures to be used", which were of course the figures for

divisionbetween the two branches of the Committee. "were more or less
iiiiiiii~~~r~:~u~1l.r I1111tcdStntt iti<lr.&~tlni,\r<yit of c.t,lirw, for 111t.
undcrlylng piinc.i~,It\vIii~.5v.tgt II<K~II >:,c.l,rc~ll>:IIt11:itIII,.l;nrgcst
-l.ii~-~~ii"~nitii>iis~Iti8iilbc IIIi>r~.~lLiiiii~i;iiitlic.\l:tiirinii. 5îfctv
CoAmittee".
. The distinction drawn bythe Danish and Indian delegations was taken
up.by Mr. Oyevaar of the Netherlaiids who is recorded, in paragraph 119
(j), as having wondered "whether the figures of fifteen in total and eight
as membership of seafaring iiations rnight not be suitable" and again
may 1 cal1 special attention to the words "seafaring nations".
Then, in paragraph 123 of the records, ?Ar.Koerbing of Denmark is
recorded as having said "as maritime safety was a question of technical

knowledge of the practical possibilities of the steps to be undertakeu to
secnre increased safety, it was logical that seafaring nations who, as a
matter of course, had experts on these subjects available, held a pre-
dominant position".
Then, in paragraph 124, it is recorded that "the Indian delegation
again referred to the interest in safety matters for nations which did not
have a large ownership interest in shipping" and that is the end of the
quotation from the record.
Now 1 submit that if, which surely cannot be the case, there were the
slightest inclination to read the words "the largest ship-owning nations"
as "the States having the largest gross registered tonnage", these
remarks from the record would entirely dispel that inclination.
&Ir. President and Members of the Court, in the submission of the
United Kingdom Governrnent, the answer to the question submitted to

the Court by the Assembly of IMCOturns onthe interpretation of Article
zS(a) of the Convention, as indeed was said several times by the Re-
presentativesof Liberia in their Oral Statements. If those who oppose the
validity of the election are right in their interpretation, then the failure
to elect Liberia and Panama rnust be regarded as contrary toor in breach
of the Convention. If, on the other hand, the Court rejects, as 1 subrnit
they should, the interpretation which has been suggested involving the
automatic application of a statistical criterion, then the election must
be regarded as valid. There is in reality no roorn for the applicationof the
arguments made in Part III of the \Witten Çtatement of the Govern-
ment of Liberia. Accordingly, it is not my intention to delay the Court
long with comments on arguments which it seems cannot possibly carrj
weight with the Court. The arguments thereset out seem to involve in a greater or less degree,
although iii a somewhat disguised form, allegations of bad kiith. The
burden of proving such allegations must indeed be a heavy one. In my
submission, there is no foundation whatever for the allegrrtion that tlie
majority who voted against Liberia and Paiiama, aiid by implication

those who subsequently voted for France and the Federal Kepublic of
Germany, acted in bad faith. The fact that the Government of the
United Kiiigdom and other Governments who voted with theni were
ready and ivilling to submit the questioii of i.;ilidity of the election to this
Court demonstrates amply that they were acting in good faithand were
quiteprepared to havetheir interpretation of Article zS (a) of tlie Conveii-
tion and the validity of the election tested before this honourable Court.
In the present case, the burden of proving that the tlsseinbly of IMCO
acted improperly must be a particularly heavy one. 1Jy Article 16,
aragraph (b), of the Convention, the .Asseinbly is espressly given the
function of determining its owvnrules of procedure. This it did for tlie
o.rn.ses of the election. and it acted in accordaiice with the rules
wliirh ir lia~l;ido~~tt~r\ll.orço\.<:r. by Artiji.as IIi;<\.ealrc~dy puintcd
oiit.ttit,:\sit.iiil)ls 1sc.sprcssiv giwtliipc#wr.rln settle ;inv qiiejtion or
di:i)iitc. corit:t.rnillicinternret;<tioii or :irinlicarioiiLIIL 'olit.<:iirinii.
ÂII these, 1 suggest, are .weighty cons;derations, but 1 feel boiind
to refer briefly to those particular contentioiis made by the Government
of Liberia in Part III of their Writteii Statement. l'here are three
points macle.
It is suggested, first of al], tliat the BIembers of IMCO votecl in ;i
manner inconsistent with the evidence of size of various ship-owiiing
nations placed beforc them or arbitrarily withoot reference to any

evidence whatsoever. This allegation is ill-fo~inded both in kict and in
law. It is ill-founded in fact because the Meinbers of lMCO clearly
took into account the iiiforti~ation laid beforc thciii iii the form of
extracts from tlie Statistical Tables piiblished iii Lloyd's Register of
Shififiingas well as the various consiclerations which uzcreplaccd hcfore
the Assembly in the course of the debates. No doubt ùlembers were
also well aware of the special factors affecting the ~iositioii of Liheria
and Panania, and indeed thesc factors do not rio\\.seein to be in dispute.
But-1 might mention in passiiig-it is not witlio12tsigiiificancc, perhaps,
that in the Notes on Lloyd's Registcr of Shi$fiing Statisticnl Tables for
1958 ,t is said, for al1 the aorld to read: "This record iiicrease in the
post-war expansion of world tonnage is widely distribiited amoiig the
principal maritime nations, but its main iiiipetiis again cornes from the
Liberian flag of conrenience which has oustcd Norway from third
position in spite of the latter's continued advancerneiit." Chat is to
say that Lloyd's stated publicly. in tlieir Notcs. tliat it \\.as due to
the Liberian flag of convenience that Nor\ray had beeii ousted from
third position in the Statistical Tables oii registerecl toiiiiage.
In my submission, the contentioii of the 1-iberiaii Government is
also ill-foiinded in law, because the Assernbly of ari international
organization is not a court of lan bouiid to act judicially on the basis

of the evidence placed formally before it, but it is a body iiiivhich
the members are at liberty to exercise their own individiial judginent
not only on the basis of information placed hefore tliem in the organi-
zatioii but also on the basis of their nwn assessment of their oivii iiifor-
mation. 1 siiggest that this is implicit in the passage from the Coiirt's Advisory Opinion on the Admission oj h'ew Members, which has been
quoted more than once before. The relevant quotation appears on
page 71 of the printed volume, namely: "The judgment of the
Organization means the judgment of the two organs mentioned in
paragraph z of Article 4 and, in the last analysis, that of its Members."
It was not suggested by the Court in that case that Members were
bound to exercise their judgment only on the basis of the information
placed before the Security Council or the General Assembly of the
United Nations in the course of their deliberations.
themselves whether applicants for admission to the Organization are
"peace-loving States" and are able and willing to carry out the obliga-
tions contained in the Charter. Likewise, in the submission of the
Govemment of the United Kingdom, the Members of IMCO mnst be
free to exercise their judgment as to whether candidates for election
to the Maritime Safety Committee have an important interest in
maritime safety and are really the largest ship-owning nations.
Secondly, it is alleged that the majority of the Assembly acted in
a manner that cannot be regarded as responsible. That, 1 suggest,
depends entirely on the interpretation given to Article 28(a), and it
adds nothing to the arguments submitted on that score. It cannot
seriously be contended that, if both the alternative interpretations
suggested by the Government of Liberia are rejected, the majority
acted in an unreasonable or irresponsible manner.
There is no evidence whatever in that sense,' Mr. President and
Members of the Court.
Substantially the same comment applies to the third allegation,
namely, that of détournementde pouvoir. ln this connection, nothing
material is added by reference to cases in which decisions by adminis-
trative authorities have bcen criticized or quashed by comts of law.
Ive are not now dealing with an administrative authority exercising
limited powers, but with the Assembly of the rcpresentatives of in-
dependent sovereign States, exercisiog the function of election for the
purposes of an international organization. The allegation of unrea-
sonableness or irresponsibility against the representatives of those
sovereign States should be firmly rejected.
Mr. President and Members of the Court, I should now like to
summarize very briefly the conclusions whicb 1 submit to the Court:
First, no member of the Organization has the right to become a
member of the Maritime Safety Committee as one of the largest ship-
owning nations by the automatic application of any statistical criterion.
2. In particular, Article 28(a) of the IMCO Convention does not
confer such a right by virtue of (a) the gross tonnage of shipping on
the National Register of a State, or (b) the quantity of such tonnage
nominally owned by its nationals whether individuals or corporations,
or (c) any other purely statistical criterion.
3. Therefore, the Assembly of IMCO was under no legal obligation,
as alleged, to elect Liberia or Panama to the Maritime Safety Com-
mittee on the basis of any snch statistical criterion.

4. 'l'hcreis, ïccordiiigly, no leg;tlgrouiid for Iir,l(liiigtlint tlie Asseriibly
of IhlCO acrecl in brcacli uf tlic Coii\,eiitin,dcclining to cl%-si.il)t.ria
and l'anania to the .\Iaririmc ,.ifet). (:oniniittcr 5. Therefore, the correct answer to the question before the Court
is in the affirmative.
In other words, MI. President, 1maintain the conclusions set out in
the Written Statement submitted by the Governme~it of the United
Kingdom and, very respectfully, invite the Court to find accordingly.
1 have now finished my Oral Statement and 1 should like to thank
you, Mr. President and Members of, the Court, for the very patient
and courteons and attentive hearing which you have given to my
rather lengthy remarks. 1 thank yon very much indeed.
The PRESIDENTJ :udge C6rdova wants to present a question to the
Representatives.

Judge CORDOVA h:lr. President, in order to clarify at least one aspect
of the case in my mind, 1 would like very much to put a question to
the Representatives for the Govemments present before the Court,
read it. Woiild it be possible for the Representatives of the Governments
appearing before the Court in this case to present to the Court, at
their convenience, reliable information, as weas their points of view,
with regard to the tonnage owned by nationals of both Liberia and
Panama respectively at the date of the election of the Maritime Safety
Committee, January 15, 195g? And 1 would like very much to thank
the Representatives who will be kind enough to comply with my
request. Thank you very much.
The PRESIDENT T:he Govemment of Liberia has expressed the wish
to comment upon new points which may have been made in the course
of the previous Oral Statements. Though this is the first time a
Government Representative wishes to speak twice in an Advisory Case.
it has been thought that an exception should be made in the present
case because of its special character, provided that the second speech
is limited to new points made during the hearings and without any
repetition of what has already been said.
The question put by Judge COrdovamay be answered in the course
of the second speech made by Representatives. 10. SECOND ORAL STATERIENT OF Mr. WEEKS
(REPRESENTING THE GOVERNMENT OF LIBERIA)

AT THE PUBLIC HEARINGS OF 3 MAY 1960
[Public hearingof 3 May 1960, morning]

&Ir.President and BIembers of the Court.

We regret to learn of the illness of Judge Hackworth and shoiild like
to express the wish that he wiUsoon recover.
Before 1 begin this reply, Mr. President and Members of the Court, on
behalf of the Government of Liberia, may 1first express my appreciation
of the consideration which you have showmin providing me with addi-
tional time by adjourning early yesterday. For my own part, 1hope that
1may be able in some small respect to reciprocate that consideration by
adhering as closely as 1 can to the conditions upon which you have
given us leave to speak again.
However, before beginning the substance of my statement, may 1
address myself to the question which Judge Cordova put to the Parties
yesterday on the subject of the tonnage owned by nationals of Liberia.
1 am not yet in a position to give an answer which relates to the very
day on which the election washeld. But 1can give a figure foadate two
weeks pnor to that. At page 35 of my Government's Written Statement
there appears the foilowingpassage:
"\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 siïe, namely, that of the
quantity of shipping owned by the nationals of the Memhers.
Applying this criterion to the Liherian 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 Libcrian
iiationals, whether individuals or companies."
1 am making enquiries by cable to ascertain the position on Jaiiuary 15,
1959. When 1 receive a reply, 1 shall, of course, communicate it to the
Court.
&fr.President, you indicated that you wished 11sto restrict this state-
ment to a consideration of new points arising in the course of the Oral
Statements. At the outset, there is one matter to which 1 should refer
which cannot precisely be described as a new point, but which caii. 1
believe, be fairly called a new feature of these proceedings; and on which,
in al1the circumstances,1 hope you will permit me to comment.
This feature to which 1refer is the failure on thepart of the four States
who have taken up positions adverse to Liberia and Panama to deal
directly or at al1with the major contentions advanced by my Govern-
ment. The effect of this has been substantially to deflect the disciission
in this case from the course which it should have followed.Soconsiderable
has this deflection been that it has changed the whole perspective ofthe
case. 1 feel that1 ought, therefore, at the outset, to make some brief
attempt to redress the situation. Th1would propose to do by indicatiiig 396 ST4TBhlEXT OF MR. WEEKS (LIBERIA)-3 V 60

shortly the principal points in the case which have simply heen left
untouched by thestatements addressed to thecourt by theRepresentatives
of Italy, the Netherlands, Norway and the United Kingdom.
There has, in the first place, been no real analysis of the vital words in
Article 28 (a)-1 quote those u,ords, "of which not less than eight shall
be the largest ship-owning nations". None of what may he called the
opposing States has really put before the Court a consideration which
deprives the words "of which not les than eight shall [and 1emphasize
shall] be the largest ship-owning nations" of their ohligatory context.
There has heen iio ex~lanatioii mhv the draftsmen should have used
maiidatory ianguage if,'instead, theyonly intended to create a discretion.
The particular issue has simplp been avoided.
Seiondly, no real attempt- has been made to meet another vital
wntention in this case. My Government considers that Article 28 (a)
creates a positive obligation to do something-to elect "the eight largest
ship-owning nations". 1 have suhmitted that the word "ship-owning"
must have some objectively definable content. When coupled mith the
words "largest" and "nations", it must refer ta some concept which is
capable of specificmeasurement. The only question is: what test should
be used for the purpose of measuring comparative size! Some test there
mus1 be, aiid it makes nonsense of the case to conteiid, as does the
United Kingdom, that there is no need to lay down a test hecause there
exists a complete liberty of appreciation. My Govemment has, therefore,
contended that the proper way of measuring a State's size as a ship-
owning natioii ij hy ;Ictc~rriiiriilic qiiniitit).of tonn:igu un the regist<-r
of c:icliSrart:It Ii:issiipported ttiis coiiteiitiIJVtlirt<rcdsi~nsto ivliicti
1sliall refer fortliipiirpusc of sliou.iii:tit.ifniliirc to dealtvitlitlitiii
has changed the chaiactër of the case. -
The first reason is that, in at least two other multilateral conventions
urhere a possessive concept is used to connect ships with States, the
concept has clearly related to registration. Both the Convention on the
Safety of Life at Sea of ~gzgand the Load Line Convention of 1930 are
expressed to apply to ships, and 1 quote, "belonging ta countries the
Governments of which are contracting Govemments". 1 wiii rcpeat that
quotation for emphasis: "belonging to countries the Governments of
which are coiitracting Governments". The precise terms of the two
Conventions are printed as iteins 7 and 8 at page 89 of the printcd
volumc of \Vrittcn Statements. Now "helonging to" are words.which
for al1practical purposes are identical with "owned by". The two words
are interchangeable. 1 can Say either "to whom does this desk belong"
or 1 can Say "who owns this desk". The effect is identical. Coiisequently,
it is of critical significance that both the Safety of Life at Sea Convention
"a ship is regarded as belonging to a country if it is registered at a port
of that country". After all, it is an elementary, logical proposition that
if "a" equals "b"and "bu equals "c", then "a" equals "c". If, therefore.
"owned by" equals "belonging to", and "belonging to" equals "registered
at", thco "owiied by" miist equal "registered at". Thus one rcaches the
conclusion that a ship-owning nation is the equivalent of a natioii in
which ships are registered.
The drafts of the IblCO Convention were prepared in 1946by maritime
experts. \Vhen they dealt with safety matters they mztsthave had the
1929and the 1930Conventions in miiid. After all, in 1946,1929and 1930 STATEMENT OF MR. WEEKS (LIBERIA)-3 V 60 397

were scarcely further away than 1946isfrom 1960.Thedraftsmen could not
have forgotten the twomajor Conventions then in force, theapplicationof
which would beone of the principal functions of the Maritimesafety Com-
mittee. 1sit likely, one may ask, that they would have used an expression
soclose to the one which they were already using without intending it to
have the same meaning? Or, to put the question the other way round,
is it reasonable to believe tliat they would have tried to convey some
idea other than that of registration by using a word which was, in the
sphere of maritime safety, so specifically associated with the concept of
registration?
Members of the Court, it is indeed a fact that despite the central
character of the argument about the import of the 1929 and 1930 Con-
ventions on Article 28, none of the opposing States have seen fit to deal
with it. Instead, they have sought to obscure it hy the allegation that
the use of the word "ship-owning" in this Convention is a unique use of

the word, and endows it, therefore, with a special meaning. But once
it is seen that "ship-owning" is but another way of saying "ships be-
longing to a State", one sees the very direct connection hetween the terms
of Article28 and the concept of registration used in the Safety Convention
of 1929 and the Load Line Convention of 1930.
Again, Mr. President, an attempt was made to obscure the real issues
by the repeated reference by the United Kingdom Reyresentative ta
Lloyd'sRegisterofShipping and the difficultiesinvolved in relying on it.
However, in so doing, he either misunderstood or overlooked the point
which 1 presented in my Oral Statement to the effect that Liberia does
not pin her case to Lloyd's Register of Tonnage or to any othei statistical
service. The case of Liberia is that it is theobjectivefacl of registration,
not the evidence of that fact, to which reference is made by the yord
"ship-owning". The United Kingdom simply disregarded this critical
point.
Again, no State really dealt with Liberia's second reason for saying

that a shin-ownine nation is one in which shi~s are reeistered. No State
came to irips with the Liberian contention t'hat the Cause of maritime
safetv would be best advanced bv ado~tine as the test of size the same
conch as determines what la/ shali onGate on board a vessel. The

d, .,
test than registr&ion cozd really or readily be applied.
Nor has any State attempted to meet Liberia's third reason for con-
tendine that reeistration is the test for determinine the size of a shin-

is that thire is no single, simple concept which can beboked to assi-
ciate a ship with a State. It is of little practical value to keep referring

to a concept of "ownership" which has hecome unreal and meaningless,
or to a concept of "beneficial ownership" which has become untraceable.
We cited the striking example of the Anglo-American Shipping Company
as an instance of the s~littine UD in the modern world of the varions STATEMENT OF MR. WEEKS.(LIBERIA)-3 V 60
399
the limits of this discretion are. The fact is that the presence of detailed
conditions negatives the existence of an unlimited discretion.
So what do the States which assert the existence of a discretion do?
They have recourse to expressions which suggest that their discretionis
not unlimited, but limited. Yet, Mr. President, 1have looked in vain,
and listened in vain, to find an indication of the limits placed by its
sponsors upon this so-calledlimited discretion, and 1am forced to the ob-
vious conclusion that a discretion without limits is an unlimited dis-
cretion. This is so regardless of the name which one may attach to the
rlisrr~tinn
Tlic f;icii rliat nr.irlicrthe L.iiir~,lKiiigJuiiii>Sr,r\rriy c,in ,r:ire tlie
liniits of rlic cliscrcri<~i\ii.liicli clic!. iir;.rccpt the iniplic;itii~iisof
suc.li 1iinit;iriviiivitlio[>iitriiirliriii.~cl\c; :!IIuiirïii:iblr ~~ositinn.
There are two reasonstor this.
In the first place, any discretion must relate to some specific matter
calling for decision. Inthe present case, if a discretion exists atall, which
of course 1 do not admit, it must relate to something. One possibility is
that it relates to the choice of factors leading to the election of the eight.
In other words, the assertion of a discretion in this context may mean
that the election of the eight can be made by reference to factors other
than size as a ship-owning nation. The difficulty with this possibility is
that it so plainly rnns contrary to the terms of the Article, and it must,
therefore, be rejected.
Another possibility is that the discretion may relate not to the choice
of the criterion of size, but to the determination of whether that criterion
is satisfied. If that is right, then it is first necessary to determine what
that criterion is. There must be a fixed criterion before Ivecan have a
discretion to decide whether the criterion is satisfied. Rut the United
Kingdom and Norway never do declare what this criterion is.
The United Kingdom and Norway are bound, if their assertion of the
existence of a discretion is to have any weight, to inform the Court of the
specificclass of matter to which their discretion relates. Only afterthey
have done this is it at al1possible to determine whether they have exer-
cised their discretion within proper limits.
This brings me to the second difficulty which confronts the United
Kingdom and Nonvay in their argument about the existence of a limited
discretion.
As my Government understands the situation, a discretion, if it is
Alimited discretion which isnot subject to reviewis limited in name only.
In fact, it is absolute. If the Governments of Norivay and the United
Kingdom say that their discretion is limited, then, if they really mean
that. they must be willing to admit some review of their exercise of dis-
cretion. In terms of everyday life, an unreviewable limited discretion
is a contradiction in terms. Yet, if they admit that their discretion may
be reviewed, the Court and the present proceedings arethe onlyplace and
mode in which such review can take place.
1 find it necessary to lay emphasis on this aspect of the argument
asserting the existence of a discretion because it reveais the fundamental
defect in their whole argument. The essence of a treaty is that it lays
down courses or standards of conduct for the parties to it. Predictable
standards are objective ones. As soon as a parG begins to assert that a
standard is subjective, it begins to destroy the effect of the agreement.40° STATEUEST OF >IR. WEEKS (LIBERIA)-3 V 60

because. in my submission, i u7eaccepted it would be destructive of the
terms of Article28(a) of the IMCOConvention. But there is also another
basis on which the argument may be criticized. It is that therc in,fact,
no adequate justification for reading a discretion into Arti28(a).
Three grounds appear to have been inroked in the course of the oral
armment for the cxistence of a discretion.
Ïn the first place, it has been suggested, particularly I>ythe Represen-
tative of the United Kingdom, that an "objective", or. as he puts it,
an "automatic" test would not be in the best interests of IMCO.He talks
at one point about the Organization being put, and 1 quote his words.
"at the mercy ofindividual States". If the implication ofthat observation
is that IMCOis at the mercy of Liberia, it would, 1believe, be fair com-
ment to Say that IMCO is being put at the mercy not of Liberia but of
those members who by their collective action are trying to exclnde from
the Maritime Safety Committee two States who between them are re-
s~onsihie in terms of national and international oblvvation for thesafetv
ât sea of over 15,000,000tons of world shipping.
But this observation leads me to the real answer to the United King-
dom on this oint. It is. i1 mav savso.rather far-fetched to sueeest that
the effectiveAessof an brgan isimGerilled hy placing iipon it thOse very
States who will, in the iargest way, be responsible for implementing its
recommendations. Why sliould Liberia, as the State responsihle for the
United Kingdom merely begs the issue wheii it says that States 1\41have
an opportunity to comment upon drafts proposed bythe Comniittee. The
simplefact is,either it is important to he on the Maritime Safety Commit-
tee or it is not important to be on the Maritime Safety Committee. If it
is im~ortant. then the reasons which make it im~ortant indicate whv
LibeAa mak& her claim. If it is not important. ihen I confess that 1
am at a lossto know why the United Kingdom isrnaking such a fuss about
the matter.
hlr. President and bfemhers of the Court, the one facfram which it is
quite impossibleto escapein this case isthatit istheState of registration,
and only the State of registration, wliich can really implement the work
of the Rlaritime Safety Committee.
Mr. President and alembers of the Court, the second line of argument
used to support the existence of a discretion is essentiallyagative one.
It is a simple argument. In effect, Italy, the Netherlaiids,Norway and
the United Kingdom contend that if the draftsmen of the IAlCOCon-
vention had intendecl to create an objective test,they would have snid so.
With respect, this seems to me to be curious argument, for it tends to
assume what it seeks to prove. To argue that if the draftsmen had in-
tended to adopt an objective test they would have said so, is to assume
that the test wh'ichthey Iiave employed is not objective. That assumption
draft of the IMCOConvention was prepared in 1946 Asin whi1hhave alreadyl
stated,it usasprepared by maritime, and not by legal,experts. They were
acquainted with the language of the Safety of Life at Sea Convention of
~gzg and the Load Line Convention of 1930. They knew that the ex-
pression "belonging to" referred to registration. It is,1 submit, a fair
inference that in using the equivalent of the words "belonging ton, they
wanted to use an equally objective test. STATEMENT OF MR. IVEEKS (LIBERIA)-3 V 60 401

Nor is it any argument against this to ask: "Why then did they refer
to tonnage expressly in Article 60 and why is there a contrast between
Article 60 and Article 28 (a)?' The answer to this question is that Article
28 and Article 60 were drafted at different times. The original draft laid
before the United Maritime Consultative Council on 24 October 1946
contained the terms of Article 28 (a)in almost its present form; but it
did not contain the final clauses, of which Article 60 is one. Those were
added later during the Conference and no consideration appears to have
been given to systematizing the drafting.

1 would submit, Mr. President, that the question might much more
appropriately be revised. Surely, it would be more reasonable to suggest
that if the draftsmen hadintended to create a discretion, they would have
said so. After all, why should they have troubled to draw a distinction
between the "eight" and the" six", why should they have bothered to
describe the "eight" as "the eight largest ship-owning nations", if they
had merely intended that Members of the Assembly should be free to
disre..rd the obiective characteristics of size?
Ir I>, 1 AIIIIIIII~LclfiCrft.a111r<u:f trc.ary drafti11g III;II if rl~c p.irtics
inrcn(l ti, irC:itLIdii~i~.tiui~tl.~!, n<~r111:11lI50 111CSPIICI ailil 1111.î111-
tii~~ioiiti.iiii:\fierall.:idi~rrctiuii (loes nor itriiictlivIcrr;ohi~ctir~ns.

itheakens them. Since parties to treaties must be presumed'to have
endeavourcd to create specific. binding and effective obligations, it may
at least equally be assumed that they will not accidentally have left
room for the exercise of discretions capable of altering the whole sense
of the text. The practice of States shows that they are fnlly aware that
if a Statedesires to retainaiinilateraldiscretion in determining a question
connected with a treatv. it. .st do so in exmess words. Exam~les of
ttiiIX:IS~~CC IIIR~ lx: f<.iiniiiIII,<..t>fof ir;ir;i iiiakiiiii,-c~illi~<i :,iiru
i1i:iriri~:.:i.r\ntiuri>rlicir I)~îl:ir,~ti~in.l;i1Iirc(Jl)ti<iii('l.iii.:.Ii,.\.
take great care to Say expressly that the questionof whether the ca<e
relates to the excluded class of matter shall be determined by themselves.

In the absence of such reservation, no one would have dreamed that
there was a right of unilateral determination.
This view of the matter is confirmed in a more positive fashion by the
practice relating to the interpretation of Article 15 of the European
Convention on Human Rights. This is the Article which authorizes
parties to the Convention to give notice of dcrogation, that is to Say, of
suspension of application, of its provisions intimes of emergency affect-
ing the life of the nation. Now, one might have thought that this was a
context in which States would clearly have a discretion to determine
when such an emergency had arisen. Yet it is of considerable significance
that when the Government of Greece raised the question of human rights

in Cyprus before the European Commission on Human Rights, and when
the United Kingdom invoked a notice of derogation which it had gioen
in respect of Cyprus, the Commission sent a sub-committee to Cyprus to
investigate the facts. The inference is inescapable that, even in the con-
text of public emcrgency, the Commission was not preparcd to read into
Article 15 of the Convention a right of unilateral determination or of
subjective discretion. If such a right cannot be read into Article 15 of
the E~iropean Convention on Human Rights, there is even stronger
reason for not reading it into Article28 (a)of the IMCO Convention.
It is, of course, true that some attempt has been made to argue
that the draftsmen really did expressly create a discretion. This argu-402 STATENEXT OF MR. WEEKS (LIBERIA)-3 V 60

ment is that the travaux firéfiuratoiresshow that the participants in
the 1946 and 1948 Conferences at which the Conveiition was drafted
were to some extent conscious of what some chose to cal1tlie problem
of "flags of convcnience". The word "ship-owning", it is argued, must
surely they must have intcnded to reserve to themselves the powerem,
to deal with it; and how else would they have done this than by the
reservatiou of a discretion? So mns the argument of those who allege
the existence of a discrction.
But, as to this argument, surely it can be said that if tlie draftsmen
were fully aware of the growth of tonnage under non-traditional flags
and if the intention was to avoid the consequences attaching to large
registered fleets, then it u-ould be reasonable to assume that steps
would have been taken clcarly and explicitly to create a discretion
allowing hfemhers to disregard registration. The use of the word "ship-
owning" simply does not do that. What cautious draftsman would
use a word generally associated with registration to describe a situation
in which it was intendcd to abandon registration? After au, there
were good. precedents available in the field of transport for avoiding
registration and creating a right to seek what the United Kingdom
caiis the "realities" of the situation. 1 need only recall the reference,
at page 61 of my Governrnent's Written Statement, to the Chicago
Air Services Transit Agreement of 1944,which contains express provision
for the possession of "substantial ownership and effective control"
over aircraft by nationals and the contracting States. And, indeed, if,
as the United Kingdom argues, the position changed between 1946
and 1948, 'it seems even more extraordinary that no steps were taken
to change the word "ship-owning". Does not the absence of change
suggest that there was no desire for change; and that, in the context
of maritime safety, as distinct from the composition of the Council,
sizeas a ship-owning nation was to be determined by registered tonnage?
the second of the three main grounds on urhich an attempt has beenth
made to read a discretion into Article zS(u), and 1 submit that this
ground is as unconvincing as the previous one. 1turn now to the third
ground. This, if 1 may be permitted to Say so, is even less convincing.
It may be summed up under the head of difficulties connected with
registration. The opponents of Liberia point to various problems
connected with registration and then conclude that it must be assumed
that States intended to elimiiiate these problems by retaining a general
discretion.
Some indication of the general character of these arguments is
urovided bv the United Kingdom's discussion of the difficulties of
âchieving cbmplete accuracy in the registration figures of the various
States. Figures, they Say, may change in the interval between their
collection by Lloyd's Register and the date of the election. Some States
do not register ships under roo tons, others do not register ships under
15 tons. The result, contends the United Kingdom, is to create a
condition of uncertainty which calls for the exercise of a discretion.
hfr. President, before1 deal with the United Kingdom conclusion,
namely that the position creates a discretion, let me consider the
relevancy ofthe premise. The United Kingdom challenges the adequacy,
accuracy and applicability of the figures in Llqd's Register. 1 am not STATEMENT OF MR. WEEKS.(LIBERIA)- 3 60 4O3

really concemed to dispute this point. The Represcntative of the
United Kingdom may be right or he may be wrong. It just does not
matter. My Governmcnt contends that the appropriate criterion of
size is the objcctivc fact of registration. We do not assert, for this
purpose, that any particular single source of evidence must be used.
If Lloyd's List is inaccurate, then of course some other source may
be employed. In our view, as we have said before, a suitable altemative
Secretanat immediately before the election. The UnitedtonnKingdom, it
may be noted, makes no constriictive suggestion at all. It merely
proposes to add to the uncertainties of the situation by granting to
Memhers a right to weight the statistics in a manner which, in the
light of what has been said, cannot be other than arbitrary, imprecise
and unpredictable. This type of weighting is inherently inconsistent
with the concept of a discretion reasonably exercised.
Perhaps 1 may tum now, Mr. President, from the United Kingdom
premise to its conclusion. The United Kingdom says that there is a
discretion resulting from difficultiesconnected with registratiofigures.
Should that be correct, which of course 1 do not admit, 1 submit that
the extent of the discretion must be limited to the occasion which
gave rise toit. If inaccuracies in rcgistration figuresoccasion a discretion,
that discretion can only extend to correcting the registration figures.
If, as the United Kingdom contends, problems of a time lag between
the compilation of the statistics and the date of the election, or of
variable lower iimits of registration, lead to inaccuracies, then the
discretion can he employed to correct those defects.
But, if that reasoning is applied to the present case, it can be seen
that the United Kingdom is not using its discretion to correct those
defects. There just could not be six million tons of Liberian shipping
affected by the time lag in the use of the statistics. Some other factor,
alien to the justification for the existence of the discretion, has been
imported; and the exercise of a discretion by reference to an akn
factor is, by any system of law, unlawful.
Mr. President and Members of the Court, it is of course possible
in fact, the discretion for which it contends is wider than mere rectifi-
cation of registered tonnage figures to meet marginal errors. In that
event, 1 am forced to assume that the United Kingdom is contending,
as do the Netherlands and Norway, that there exists a discretion which
entitles Members to determine whether there is an effective connection
or a "genuine link" hetween ships and the States in which they are
registered. 1 will not repeat what I have already said about the "genuine
iink". I adhere to that. In my submission, it is the task of the Court
to determine what is meant by the expression "ship-owning". Once
the Court has done that and has pointed to an objectively ascertainable
criterion, the concept of the "genuine link" has no relevance at all
in the present context.
Mr. President and Members of the Court, if 1 may for a moment
assume, but of course without admitting, that the genuine link
concept as contained in Article 5 of the Geneva Convention is rele-
vant here, there is one vital point which has been completely
ignored in the Oral Statement made on behalf of the Govemment
of Norway. STATEMEST OF hlR. IVEEKS (LIBERIA)-3 V 60
404
In introducing the concept of the genuine link into this case, Italy,
Norway and the United Kingdom are, in effect, sayiiig: for the purposes
of recognition, of registration, Afembersof IMCOare entitled to considcr
whether or not a genuine link exists bctween a State and the ships
on its register. But, Plr. President, this is the very thing which, having
regard to the development of Article 5 of the Geueva Convention on
the High Seas, they are not entitled to do. When the draft of Article 5
was placed before the Geneva Conference, the sentence about the
genuine link was prefaced by the words, and 1 quote those words,
"nevertheless, for the purposes of recognition of the national character
of the ship by other. States". Those urords are no longer in the Article.
They were removed on the initiative of El Salvador, supported by
the United Arab Republic and Iran, by a vote of the Plenary Session
of the Conference by 30 votes ta 15, with 17 abstentions. It was only
aftcr the removal of those mords that the Article was adopted by the
Convention. The Government of the Xetherlands, it may be noted,
did not trouble the Court with that essential detail when refemng

to the adoption of the Article.
In my submission, assuming for the moment that the Court is entitled
to apply Article 5 in the present context. the Court shoiild not put
back into Article 5 what the Geneva Conference expressly took out
of that Article. Or, putting the point in another way, since the Geneva
Conferencc'removed the sanctions for non-compliance with the require-
ment of the genuine link, it would not be appropriate, in the context
of Article z8(a) of the IMCO Convention, to exclude a State from the
Maritime Safety Committee on the ground that there \vas no genuine
link betwcen the State and the ships registered with it.
Moreover, there is another point of major significance which stands
out upon examination of the records of the International Law Com-
mission and the Geneva Conference. That is that there was a clear
sentiment both in the Commission and the Conference that it should
not bc open to States unilaterally to deny the nationality of ships,
because this would lead to stateless ships-a status which international
law seeks to avoid on the high seas.
Mr. President and Members of the Court, closely connected with the
genuine link is another point which has been raised by the Netherlands
and Norway. It relates to the Nottebohm case. The Government of the
Netherlands has, indeed, comineuted on the fact that my Government
has not referred to the case in Our Wntten Statement. Nor, it may be
said in passing, did the Netherlands. But the real answer, &Ir.President
and Members of the Court, is that the case is not relevant. We might
much more pcrtinently comment on the failure of the Netherlands
Government to cite to the Court the Montijo case (reported in Lapradelle
and Politis, Recueil des Arbitrages internationaz~x,Vol. III) or the case
of the Muscat Dhows, dccided by the Permanent Coiirt of Arbitration
in 1905. After all, both these cases recognized the right of States to
determine the circumstances in which they would grant the right to fly
their flags.They deal with ships. They have not in any way bccn over-
ruled. Thcy arc relevant. The Nottebohmcase is not relevant.
To sav this is not to ouestion the imuortan2e~of the constructive
clinrnctrr of tliat dcciiiorIIIan? \\.a)..I3titthe .Yollibv/rncase is,;I>the
Coiirt itselsa\i IIIrlic Jiidgniciit:icnw rclaring ta diplotnatic protection
of indi\,idiials:it ii;icas? relnring tu tlit ~intiutinlit).of a iiaturalircd STATEMENT OF MR. WEEKS (LIBERIA)-3 V 60
4%
person; it is a case in which at the material times the naturalized person
not only did not have a genuine link with the country of naturalization,
but in which in fact he had a genuine link with the very country against
which the claim was brought. The Court, as 1have mentioned, lias itself
laid emphasis on those factors, and 1do not believe thatit is a~vropriate
to intriduce in the context of ships-which can never have duaîÎ~at'ional-
ity, and 1 emphasize which can never have dual nationalitv-decisions
relatintr to individuals in circumstances which can occasion dual natio-
nslit)..".\lrircuvcrth,:.Y~itsbi,kn~c;wc \V:ISdvcided biforc the cuiicluiion
of tlie (;eiii.\..i Convi:iitiuii un tlic Iligli <(:ai; ;~iidiiriio ri.isun to
assiiiiicrlint5tatc.i inri-ndcd to triiiisf~r thiit Tud~rn~iltin ifs ~'~itir~.t\'
into the law relating to the status of vessels. ~ndeed, it is difficult to s&
how some of the factors enumerated by the Court in the Judgment
could possibly be applied to ships.
There is, however, one other aspect of the Nottebohmcase to which
reference has been made-namely, those parts of the Judgment which
relate to the effects in the international sphere of unilateral acts by
States. 1need hardly assure the Court that my Govemment fully accepts
the view of the Court that there are some u~iilateral acts which are
conclusive upon foreign States and others which are not. This is a fun-
damental axiom of international law, and 1 believr that it is correct to
Say that in referring to the matter in the Judgment of the Nottebohm
case the Court was not intending to do more than restate an accepted
principle.
But the real objection to unilateral acts does not apply here. This is
not a situation in which a State hy its unilateral act seeks to acquire
benefits without obligations. Membership of the Maritime Safety Com-
mittee, Mr. President and Members of the Court, is not a simple benefit.
It is an assumption of responsibility; it is a necessary discharge of duty
owed by a State which is responsible for vessels-owed by that State
not only to the world generally, but particularly to the men who sail
on those vessels and whose lives are at stake. Mr. President, my Govem-
ment is not represented hefore the Court today out of selfish motives.
It wiUreceive no pecuniary henefit if the Court decides that it should
he a memher of the Maritime Safety Committee. It merely feels that it
has a responsihility to discharge and that there rests upon it,that is my
Govemment, as the Govemment of an independent State, a duty to
fulfil its obligations. There is here no motive for the exercise in an
unrestrained fashion of a unilateral power designed to improve the
position of Liberia. Yet the discharge of its duties is the highest function
of Government: and it is in the sense that a Government has a right to
discharge its function that my Government seeks the aid of this high
Court in the application of Article 28 (a) ofthe IMCO Convention.
Mr. President and Memhers of the Court, this brings me to the final
oint which calls for comment. The Court will recall that in Part III
uf its \\'rit~ci~Oi,icr\,atit,iis rny (;ovrniiii~iit ra:icfiiii<lnin~~nta~lIIT-S-
tion ri.lnriiig to III<.i:oiidiict tli~~1ecti011. \Yc,~~ibiiiitt~d[Ilnt ii the
Cwrr shoiild iiiitltl~:~~lrnil~crs unsst>+ 3 hinitrd ~Ii~cr~,tirIIcoiinecti~~ii
with the election of the eight la& ship-owningnations, that discretion
was not properly exercised. In consequence, we suhmitted, there was a
failure to comply with the constitutional law of the Organization; and
the Maritime Safety Committee could not therefore be regarded as
properly constituted.406 STATEhlEST OF blR. \VEEKS(LIBERIA)-3 Y 60

~omewhat curiously, the Netherlands and Norway Iiavc said nothing
about this point. Only Italy and the United Iiingdoin have referred to
it briefly. They have contended that there was no generally accepted
was restricted to administrative powers.iternatively, that if there ivas. it
bly submission to you on this point is that there is a general principle,
which forms part of international law as wcll as of municipal law, that
any discretionary power must be exercised in accordance with the terms
of the grant and only for the purpose for which it was granted. If 1may
put it in tGose terms. 1 woiild submit that a principlc of this kind is to
be found in cach of the systems of law which, in accordance with the
Statute of the Court, are represcnted in the Bench. Such a principlc is
inherent in the concept of discretionary powers; for, were it absent, it
would mean, as 1 have already pointed out, that discretions which were
intended to be limited, defactobecame unlimited.
It may +el1 be that there are variations from State to State as to the
wayin whidhthisgeneralprinupleisgiven effect in the local law. But that
does not deprive the general principle of its validit;ilor does it diminish
its applicahilit in this Court. It is these local variations which explain
why in somc gates there may be a limitation of the actual scope of
judicial review to acts of an administrative kind. This is a purcly local
jurisdictional limitation. It goes to procedure and not to substance.
And it cannot be employed, as the Representative of Italy sought to
employ it.' for the purpose of laying down a general rule that only
administrative discretions can bechallen~-d. unless. ofcours?.one define
':~dininistrativ,r" quit? \vidcl!.. \\'iih ri..;tti~tstst~iii~ii<Inci noi
rcflcct ihc pusitiuii uutsids Italy. ur, irrdecil. cvcii in Irai\.. Perusal of
Dr. C;nlc.uiti'scoiiii~;irntivcstii<l\.on Ir~C~nlrul 01l~ul[ic:ltrilrorities
ilegislative :acts are suhject to review.3-95.sho\G bat in Italy even
In view of the generality of this rule-that no power should be abused
-1 hardly, need do more than add that if the concept were in some way
limited to administrative acts, thisclassification is not so clear or rigid
as to exclude the election of the eight largest ship-owning members of
the hlaritime Safety Committee as an administrative act. In choosing
those members of the Committee, the hlembers of IhlCO are not per-
forming a[policy function: they are perfonning what in English law
would be called a ministerial act-an act of administration.
If the C?urt will permit, 1would rcspectfully draw to its attention an
extremely helpful article on "llétoirnzementde $ouvoir by International
Organizations" which appears in the Brilïsk Year Book of Iiiternalional
Law for 1457 at page 311. The author is MI. James Favvcett, the General
Counselof the International Monetarv Fund. who is a person with suecial
experience in tliese matters.
There Te two passages in his article which 1 should like to quote.
The first, which is on page 314.reads as follows:

"Some form of majority mle has become the normal practice in
contemporary international organizations, and consequently it rnay
come.about that the representative or executive bodies of such an
organization exercise their discretion in a manner thought to harm
the irlterests or encroach on the rights of particular members, in so
far as the decision exercising the discretion is constitutioiially STATEMENT OF MR. WEEKS (LIBERIA)-3 V 60
407
binding uyon a11 Utit jiist as no majoriry uf ~li;ir~holdecîn l>urliort
Io sniictiuii wliat iulfrn 7iretslie conipdny %>cruiiiiiiia frditriipon
rlic niiri.,rit\,, su ir is bc.litliu(rltïininority of iiiriiiLcr Sratrs
of an interntional organization are entitled t6 protection against
acts of the majority in excess of powei."

The second excerpt, from page 315. is as follows:
"It is hardly possible to define exhaustively the class of actions by
an international organization which mieht constitute détournements.
But in the relatioiis between an org&ization and its component
States, it is beiieved that the following would be typical: actions or
decisions by any organ which, though formallyconsistent with the
provisions of the founding instrument of the organization, are
designed (i) to accord unequal treatment to a particualr member
by diminishing its rights, or reducing or increasing its burdens as
compared with the other members of the organization, or (ii) to
alter generally relations of the members established in the founding
instrument."

130tlirliesr I>ajmges.in ni). siibiiii~sion,IefiiUsiippt>rttu rny gcneral
poiiit-the nrst liiiilof uiir propi><itioti-tli.zt rli~rc existsn grnvral
i~rini,iiilrrcl:irtnr to abiiic of I>uw.sIO Ille ;t'ci>iidli11.lut tlicrc lias
been an abuse in the present case, there has been singul'arlylittle said.
Perhaps it was felt by our opponents that it was better to Say nothing
about this lest the wrong thing be said.

[Publi hearingof 3 May 1960. afternoon]

Mr. President and Members of the Court, we have contended that a
discretion, if possessed, must he exercised by reference to the purposes
for which it existed. There are two basic types of reason why, if a dis-
cretion existed at all, it may have existed here. The first is a iimited
reason. As the United Kingdom hascontended, it may have existed for
the purpose of adjusting out of date or variable registration figures. If
so, then the room for discretion is a small one. It certainly does not
extend to using a discretion to abandon registration figures entirely. In
those circumstances, it is difficult to see how, on the basis of a marginal
modification, States could legitimately have voted against Liberia and
Panama.
Moreover, even if they did have a discretion to move away from
registration to some such concept as "genuine link", their consequent
action would be unlawful by reference to another mle goveming the
exercise of a power. The rule is that if a discretion is granted, it has to
be applied in a proper manner, taking all relevant factors into consider-
ation and omitting al1irrelevant unes. As 1 have indicated in my first
Oral Statement, there is clear evidence in the Written Statement of the
Netberlands that that Govemment has com~letelv misconceived the
applicariori of tltc "geniiine link" r~il?.Tlie rrlc~inr pirt oi iiiy st;ttrrti~.iit
nia). be found at pages 2<)3-2<juf,flie \'erbalini Record for27 .Al~ril1960.
'l'licsecond nioîsiblr iu,tiii?~rinn of rhi i>osjcajiunof a diicreti<>iiii
this situation i6this: thcre may be a generA purpose-the advancement
of maritime safety; and States may be able to justify their vote by
saying tbat what they did was for the purpose of advancing the work of40~ iSTATEMENT OP hfK. WEEKS (LIBERIA)-3 V 60

the Maritinie Safety Committee. But if States Say this, then how. by
reference to the Record of theFirst Assembly and what has been written
and said in these proceedings. can there be any doubt as to the real
motives for.voting against Panama and Liberia?
Mr. President and hlembers of the Court, if ever there was a case in
which alien considerations of commerce intmded into a technical inatter,
this is the case. It is, 1 submit, of the greatest significance that noState
represented in these proceedings, and which voted against Liberia and
Panama, h?s even indirectly asserted that its conduct in al1these pro-
ceedings was motivated by the only consideration which is possibly
relevant, namely, the advancement of the work of the Maritime Safety
Committeeiand the general cause of safety of life at sea.
In short,:Mr. President and Members of the Court, it is my submission
that even if there did exist a discretion in relation to the election of the
Maritime Spfety Committee, it was in ail the circumstances abused or
exThere cllarly lies upon the Court a heavy responsibility to refrain
from any action which could be regarded as an interference with the
liberty of an international organization to regulate its own affairs in
accordan~e~withits constitution. But equally, it is, in my submission, the
compellinglduty of the Court to recognize and to protect the rights of
each individual member of an organization. That duty is even more
compellingivhen. as in the present case, a distinct flavour of oppression
hangs overjthe whole matter.
Article I;of the IMCO Convention dedares that one of the purposes
of the Organization is the removal of discriminatory action and the
promotion of the availability of shipping services to the commerce of the
world without discrimination. Mr. President and hlembers of the Court.
1 ask you, on behalf of the Govemment of Liberia, to recognize Ourright
to conduct our maritime affairs without discrimination and 1ask you, to
that end, to recognize our right to a seat on the Maritime Safety Com-
mittee.
Mr. President and Members of the Court, this is the end of my oral
reply. 1 wish that 1 could have been briefer in my reply. 1should like
nevertheless to thank you, to express my appreuation for the oppor-
tunity to have addressed the Court a second time, and. particularly.
for the patience and the courtesy with which you have listened to this
reply.1 thank you. ..~

11. SECOND ORAL STATEMENT OÈ Dr. FABREGA
(REPHESENTING THE GOVERNMENT OF PANA~IA)
AT THE PUBLIC HEARINGS OF 3 AND 4 MAY 1960

[Public hearing O/ 3 May 1960, afternoon]

MI. President, Members of the Court.
1 wish to thank the President for giving the Republic of Panama
an opportunity to be heard again in this important case, and 1 wish
to promise the Court that 1 shall heed the observation of the Court
that in this second intervention we should ts. not to repeat matters
that were covered in the initial presentation, and also that we confine
our statements-our arguments-to matters which were brought by
what we may cal1 the other side of this case during the oral hearing.
Before 1 go aiiy further, Mr. President, 1 would like to express Our
deep regret at the absence of two Judges by reason of iilness, and
to express our deep and sincere hope that they have a full and speedy
recovery.
At this moment, 1 would like to refer to the question presented to
the various Representatives of the respective Governments here by
Judge Cordova. And 1 regret very much that on behalf of Panama
1 cannot give now an exact or precise answer to his question. 1 must
Say that 1 am not in a position now to give a precise auswer because.
frankly, we did not expect that question to be raised and.therefore
that information was not brought by me to the hearing; and further-
more, because,as 1 shall try to explain ia moment, that information
-the way we understand the question-may be very difficult to
ohtain. If the question is to be understood as defining the word
"nationals" to include individuals, as well as corporations, then 1
would Say that the question becomes very difficult, almost impossible,
to answer, and, if possible to be answered, such answer might require
considerable time, because-and that is one of the main points on
which we lay stress in the course of Our arguments-when one tries
to ascértainindividual or beneficial ownership in the case of corporations
owning ships under the Panama flag or any other flag for that matter,
we run into very complicated and complex questions of bearer shares,
shares in trust, equity interest in one or another party, so that the
matter becomes really a very complex one.
If the question is intended to refer to nationals as iucluding only
corporations, the11 1 could give an approximate answer to Judge
Cordova, to the effect that we can safely Sa(1 do uot have the figures
with me but we can safely Say) that more than 75 per cent of the
tonnage.under the Panama flag is owned by corporations registered
and constituted under Panama law and under Panama domicile. 1
cannot tell now what the excess over 75 per cent is, and also 1must
make this statement with the reservation that 1 cannot guarantee
that that is an accurate statement as of 15 January 1959. but currently
-currently-more than 75 per cent of the tonnage under Panama
registration hasbeen and is owued by Panama corporations.
28 STATEMENT OF DR. FABREG (A ANAMA)-3 Y 60
41°
Now, ifi may, 1 shall proceed with my second Oral Statement,
and again I>pologize to the Court for having to speak extemporaneously
as 1 did the; first time, and 1 do hope that this fact of speaking extem-
poraneously, does pot make me prolong unduly this presentation as 1
would like ($0 keep it as brief and as summary as possible.
hfr. President, 1 think that as a matter of convenience we should
group the sdbjects, which have been discussed here by the Govemments
which opp8se our position, under four categories, and 1 suggest as
conveuient Ititles for those four subject-matters (we have discussed
them so long that the matters now should be familiar to al1 of us,
convenient$/one) the four headings, being:d(1) the meaning of "ship-
owning natjons"; (2)important interest in maritime safety; (3) dis-
cretion; and (4) "genuine link" and related.matters.
Let us nàw take the first group, Nr. President and Members of the
Court. 1
Ship-owning nations-the meaning of "ship-owning nations", and 1
agree, Mr. President, with the Representative of the United Kingdom
that that is really the heart of this matter; 1 think that if ive are to
weigh the !relative value of the various matters that have been dealt
with in this debate, probably the greatest value-the greatest im-
portance-fies in the proper analysis of the concept of"a ship-owning
nation". Once we reach a conclusion as to what a ship-owning nation
is, what is ;the proper test for determining what a ship-owning nation
is, the restofour problem, and for that matter the rest of the problem
for the IMFO Assembly, should have been very simple: just to take
the eight lqgest ship-owning nations. So now, in analysing this aspect
of what a ship-owning nation is, 1 must start by saying that it is very
tives of th: Govemments which oppose our position have been veryresenta-
elaborate iti saying what ship-owning isnot, in their opinion. But we
do not getl any constructive, any positive assertions from them as to
what a ship-owiiing nation is, as to what ship-owning is.
1 find tcat the Representative of Italy-and this is repeated by al1
the Represmtatives .that spoke in favour of that position-in trying
to define yhat a ship-owning nation is, only gave as an answer what
we may cal1 "the theme song" of the position of the other side, the
matter of 'discretion; he said ive should not have an automatic test,
we should /have discretion in the matter-and so we do not get, we
never get, positive statement of what a "ship-owning nation" is in
their opinion.
The ~ePresentative of the Netherlands does not say that at all,
does not ahswer that in a positive manner at all. The Representative
of Italy siYs: "If there should be a test, it should be ownershiq by
nationals."i The Representative of Norway again says that it 1s a
matter of rdiscretion; that it cannot be stated in precise terms; and
registration, and curiously enough he goesuas far as saying that, even
if tonnagel should be the test, yoii could still go behind the figures
of tonnage to analyse them and use discretion in interpreting those
figures. (This, 1 think, amounts to saying that. even if tonnage should
be the tes$, tonnage should not be the test!) But the extreme negative
position vie find in the Representative from the United Kingdom.
!

! I'ATEMENT OF DR. EABREG (AAXAMA)-3 V 60

or the fee imple over the vessel; two, the State not having title or
owning thi :eesimple but having control over the vessel, ownership in
the politic sense of control, jurisdiction and the power to apply its
laws and i :ulations to that vessel; third, the vessel being owned by
nationals c the State: those are the only three possible alternatives.
Now, wf ubmit that the only logical way to find which of these three
concepts, O hese three tests, isthecontrollingone, the decisiveone,should
proceed th ugh a process of exclusion, analysing which onesare not, and
then leavi: the one that is the proper test. And for the purposes of
exclusion : take first the question of title, or fee simple in the State,
the State 1 ing the owner, in the civil sense, of the vessel. We submit
that that iuld not be the test simply because that would again be
against th( realities of the situation, it would be against intelnational
practice in iaritime life, against the experieuces of previous maritime
conventior and conferences which preceded IMCO, which were related
to IMCO, : ch as the Safety of Life at Sea Convention, the Load Line
Conventioi and many others. They never thought of "ship-owning
nations" ir erms of vessels belonging actually to the iiation. As a matter
of fact, ev today, only a very small riumber, an almost insignificant
percentage ,f merchant shipping, is owued by the Government in the
civil law si je
Let mer ,irakc nltciii;ttivr iiiinihcr tti.urtti~:piirpu~~sof~~xclu~ion,
that is, th, ~~~~ssit~irlli~i~wlratIS i1icaiii, ~~!viit-r,hl~ythe niiriuii:iIs
of the Stat \\IVsuhmit. \Ir. llresi,leiit --aiiiIVL 'io\vlnt!x~~li.iu the
Court that am not repéating our previous argument but Iam simply
stating thi to sliow that the answer of the Governments opposing our
side ha no re~iiedto the ~osition that we stated from the beeinnine-
we submit hit they could not have meant ownership hy theYnatioials
of the Stat In the first place, blr. President, we Say this hecause the
very langc :e that we aie now interpreting here Feads "ship-owning
nations", i ioes not Sayship-owningindiuiduals, it does not Say ship-
owning CO: orations-the "eight largest ship-owning nationsu-so we
must think bfownershi~ bv the nation. either in the civil sense which 1
have discal ed, or in the p~litical sensewhich we submit is the true test.
MI. Pres ent, Members of the Court, 1 shall try very briefly to termi-
nate descri ne our tiosition so as to be able to show how thëother side
avoids ans :;ng thàt position, intend of answering it positively. 1 will
Say that oi ership ùy nationals of a Stat.e could not be the test because,
in the firsl dace, the language of the Statute referred to ship-owning
nations anc iotindividuais. We say secondly that ownership by nationals
cannot be ie test because, as we stated in our Written Statement,
that would nake the rule one of almost imoossihle ao~l. .tion. It will
throw us i ,\,it;il>ly irirr.thr niarrcr of hc-;iciici:iliiu.ni,rsltip, brcaii:c
certainly O :\i.oiilil nut thinktlint!.uii \i,o~ildçu lichincl th<-flng aiiil
into owner! 11)iiicrt:lIOsroi) nt the iiiridi~~lfiction uf the cori~oratioii.
If you go t Gnd thcdflag and go int; ownership, you would &nt to go
into the re; roots of ownership, if you want to be philosophically consis-
tent-and ien that takes us directly and deeply into the matter of
beneficial c nership; 1 think it was precisely one of the Representatives
from the < ier side that called it, verv"appropri-tely, the "weh" of
heneficial < nership.
1 may si candidly to this Court that 1 have had occasion, and 1
frequently, 8have occasion in my private practice of law, to yitness the STATEMENT OF DR. FABREG (AANAMA)-3 V 60 4I3

intricate picture of this heneficial ownership, tu see a vessel whichhas
been built in Belgium owned by a Panama corporation, financed .by
New York comoanies. then chartered to Euro~ean interests. then mort-

~,
sometimes forming a ;oting trust by~which they agree to vote~en bloc,
althourh thev are of different nationalities.
So, &vner<hip hy nationals, or rather the resorting to ownership by
nationalsin search of a test, ismply trying to choose the most complex
and complicated solution that onecan iinagine.
Mr. President, that has been Ourposition throughout. That leaves, of
the three, only one test-tonnage registered under the flag. We have
submitted that that is the test that answers the criterion of usage; that
that is the test that answers the criterion of treaties signed on the very
subject; that that is the test that answers the criterion of achievement
of thepurpose oftheconvention-the intent ofthe Convention-analysed
in its entirety. It answers the test of usage hecause wefind that inLloyd's
which we may mention as the standard reference, the columns in
Lloyd's are entitled "Nations which own the vessels", and then under
nation having such tonnage under its flag. The criterion of treaties-
and here 1want to refer to a statement onpage384 ofthe Oral Statement
of the Representative of the United Kingdom, wherein he states that he
has heard of no treaty or convention using the expression "ship-owning
nation". In our Written Statement we mention two: the Safety of Life
at Sea Convention and the Load Line Convention of 1930.The Load Line
Convention of 1930 states, and 1 think that this is so important
that 1want to quote the exact words: "A ship is regarded as belonging
to a country if it is registered by thc government of that country.!'
"Belonging to a country" and "ship-owning nationsn-these are equi-
valent terms. This is the language in the Load Line Convention. This is
also the language of the Safety of Life at Sea Convention. Arid irithis
connection, illr. President1think it is very important that 1 bring out
to the attention of the Court that the Safety of Life at Sea Convention
and the IhlCO Convention are closely interrelated. There is a very tight.
connection between the two. 1 would Saythat IMCOisnothing else than
an organization to implement and to put into practice principles of
safety which have been adopted by the Safety of Life at Sea Convention
Conventions and other similar ones; and the close relationship between
the two is so evident that (when the IMCO Conference took place in
1948) we find that in the final act of that Convention there appears a
resolution, which was approved by the Assemhly of IMCO, saying that
it is recommended to the IMCO Conference-which was to meet, to take
place several months later-that it is recommended to that Assembly,
1 repeat, that it take into effect the principles of the Convention in its
deliberations. So the Safetv of Life at Sea which has tonnage under the
flag as the definition of shii>-owningis telling IM~ to acce5 their prin-
ciples as the euid-n- principles, because thev are two closelv interrelated
Conventions:
And 1 will say, to try to give over-abundance of evidence tu my dis-
tinguished colleague, the Representative of the United Kingdom, that STATEMENT OF DR. FABREG (AANAMA)-3 V 60
4'5
by each vesse1of a connection with a State having a recognized
maritime flag."

I now move on with our rebuttal, Mr. President, by saying that we
submit that once registration under the flag,tonnage registered under the
flagis decided to be the test of ship-owning nations, the rest of the matter
should have been very simple for the IMCO Assembly. What else did
they have to do, having determined what a ship-owning nation was?
They hadto proceed to elect the eight largest ship-owningnations, whicb,
as we know, they failed to do.
Now, the Representative of the United Kingdom, at this point, went
to great lengths-and certainly 1shali not devote ten percent of the time
that he used on this point-went togreat lengths to explain the inherent
ossibilities of inacciiracies in Lloyd's asan authoritative list. Wesubmit,
Kr. President. that once vou acceuted the ~rinci~le that it meant
tonnage regis<crcd under th fl3g. the qiiestio;uf \'hicil autiioritativc
list yoii should tisc or sho~ilot use isa 5-condary matter. Ir happened
tlinr in tliii~:irticiilnrcasth~ .-\SSCII~I>ch~se LIo\'dls. t\nd WC ja\,if
they chose iloyd2s, tliey should have bien consistént in the choicéof
Lloyd's-which the Assembly majority wasnot. If Members of IMCO,
tomorrow, on another conference, should wish to take the American
Bureau of Shipping as an authoritative list, or Bureau Ventas, nobody
would quarrel with that. But the important thing is that the list, the
authoritative list, be used consistently and in good faith, andnot in the
IMCO did not take Lloyd's List purely forthe sake of having a list. For
that matter, any list. If that had been the case, they could have proceeded
in alphabetical order, called the names of the various States and voted in
alphabetical order. They chose Lloyd's, which is a list which contained
tonnage registered under the flag and having the order of such tonnage
registration. And they chose to disregard the nations which they did
not want to elect. That is what this case comes down to.
It is very curious to pause for a moment, Mr. President, to think of
how far you can carry that type ofinconsistency. If you are usingLloyd's,
which, 1 repeat, contains a list on the basis of tonnage registered under
the flag, and then you Say, as the IMCOmajority did: "Oh, wedon't have
to takethe firsteight in the list", and yet you were looking forhe largest
ship-owning nations, now, where are you going to stop in the list? Are
you going to take a list of fifteen, of twenty, of thirty members? If you
strike out, so to speak, as the Assembly did, the word "eight", and are
looking for the largest, we can see that there is no limit to how far you
can go. So that goes to show that consistency is required, that if they
chose Lloyd's as the authoritative list, and if the definition of "ship
owning" was "registered under the flag", they were bound to take the
first eight nations appearing in that list. Tohave chosen the list and to
have failed to elect two Members in that list is what we cal1 in our
Statement an arbitrary, inconsistent and capricious action which should
be declared to be invalid by this High Court.
Now, Mr. President, with the permission of the Court, I want to take
up a reference that is made by the distinguished Representative of the
United Kingdom to what occurred in 1948 in the IMCOConference.And
I regret to Say that perhaps this is not the most agreeable portion of my
presentation because 1 now must run into some statements whicb, we41~ STATE~~ENTOF DR. FABREG (AANAMA)-3 V 60

submit. were nresented to this Court in a manner that does not accord
entireli with the tme facts. And, second, because in that presentatioi
certain adjectives or epithets were used with reference to mv countrv
which I csnot pass of let go without comment.
of IMCOnialready was aware of the fact of the flags of convenience and
did not cons'iderPanama worthy to be a member of one of the organs
of IMCO. N?w, Mr. President, 1 say that this is not telling the entire
story, the cqmplete story. I1 could refer the Court to page 180of the
Written Statement of the Re~ublic of Panama. the Court will be able to
fmd that rhc representativc of Panariia protesied becauie agroup-and
this lias al\i,a)s been our complaintgroup of inrerests. of cornrnercial
interest. nuidcd i)iirIJVreasons of coriiriiercialcomoetition. Iiad iinited
to act aiaikt the Governments of certain flags-Liberia kas not an
active maritime nation at the time, but theyited agaiiist Panama, and
they tried to exclude Panama from the Second Working Party of the
Conference. whichwas a very important party as far as the conduct of
the Conferencewas concemed. And the delegate of Panama brought out
the fact that Panama was the fifth nation on the basis of tonnagender
the Panam? flag, and that Panama could not be excluded from the
Working Party, and it was on the basis of that representation and that
protest thaf the IhfCO Assembly included Panama in the Second
Working Pvty. In OurWritten Statement we give the reference to the
that has been presented to this Court by the Representative of the story
1-.....-~inédom.
MI. President, hfembers, of the Court, the Representative of the
United Kingdom stated thatthe 1948IMCOConferencefelt that Panama
was not worthy of forminga part of one of the important organs of that
Convention. As 1 said a minute ago, this matter of one nation passing
iudment uuon whether another nation is worthv or not worthc for a
parïicular pÔsitioiireally brings us into a not too Gleasant analys& of the
situation. Because this "holier than thou" attitude of one nation against
the other fr;ankly compels the nation that is referred to to mike a
counter-estimate of the holiness of the position of the nation making
the accusation; and 1 am not going to extend myself upon that. 1only
have to say Fhis: that if we want to go into the relevant high moral tone
of the nations acting in thismanner, 1 would like to have the Court
pause for al minute and consider, by the very description which my
distineuished colleaeue makes of the situation. how would the Court
describe what thesemembers or some members'of the Conference were
because tonnage under the-Panama flag was kowing; because it wasers
fourth or fifth. He ha not said, in one instance, that ships under the
Panama flag were not seaworthy, were not proper ships, were not in
good condition, did not come up to the standards of safety; no, hebas
not said that. and he could uot very well say it, because from that time
up to the present-and ivehave evidence in our Statement-ships under
the Panama. flag, and today also under the Liberian flag, meet with al1
the standes of safety and çeaworthiness and are abiding by au the
conventions.which ensure safety at sea. No; but it was not that at al11
Those mempers having anxiety were womed because the fleet was
growing, was growing in size. Sn, what docs that mean, Mr. President?
l STATEMENT OF DR. FABREG (A ANAMA)-3 V 60
4I7
1 submit that they were womed, there was anxiety, because of a matter
of competition. It was purely a matter of commercial competition. And
that is what 1do not like to see. Mr. President. when in a situation like
this one country begins to invoke the morals and the holiness of the
position of one country as compared with the other.
Panama was not worthy. Why? Because Panama was competing with
other nations. That was the onlv sin that Panama was committin~--n,d.
iurely. we do not want to see ai important internationalinstrument like
IMCO beine motivated in its important decisions bv the ~urelvcom-
mercial interest of competition; bd, surely, we would nÔt want the
highest Court in the world, namely this Court, to be asked to make a
decision in one direction or in another direction, when the party re-
questing that decision may in any manuer have been motivated by
Written Statement, hlr. President, and with those words 1 leave this
unpleasant subject of the reference as to which nation was worthy or
was not worthy of being a Member of the Organization.
Mr. President, 1shall try to summarize as much as possible the balance
of my presentation. As to the next two headings of the four into which
1 divided my presentation, 1think 1 could take them together, because
they really overlap each other, and that is: the question of important
interest in maritime safety and the matter of discretion.
MI. President, we submit that the Govemments which oppose our
position have not answered our presentation, or our position, to the
effect that the "eight largest shipowning nations have, per se,and by
that very fact, an important interest in maritime safety". We supported
that position, first, on the basis of the simple grammatical test of the
Convention. We brought out that the word "elect" in the Article is used
twice; first, in the sentence at the beginning which refers to the compo-
sition of the entire body, to the fourteen Members; second. when it
refers to the election of the remaining six Members. And we took the
position that if it had beeu the intention of the drafters that there should
be discretion in the election of the first eight, the word "elect" should
have preceded the reference to the "eight" Members in the same way
that it had preceded the reference to the election of the "six".
We also made the grammatical argument, or rather a deductiou from
the grammatical sense, that to use the word "elect" as meaning "dis-
cretion" with regard to the first eight Members was in open contra-
diction with the mandatory nature of the words "shall be". That, we
suMr. President and hlembers of the Court, we cannot help feeling-and
1 do not mean to be unduly critical in saying this-we cannot help
feeling that the Revresentatives of the Govemments which oovose OUI
positiori.iii]>r<:stiit;ngttizir entirc case \vluch practicnlly hiiiges. turris
upon ttic idca of discretion-that they appçar to have iiiadç :iconfusion
het\veeri intcri)retation and discretion. \Vc sec that ruririiiic tliri~iictiutit
their arguments; they Say "ship-owning nations" are words tha'l had
to be interpreted; consequently, there was wide discretion to interpret
that and to reach the conclusion which the Assembly thought best.
Now 1think that right there there is the faliacy, there is the vulnerable
position, which runs through the entire analysis of the case: this con-
fusion of interpretation with discretion. Now wehave taken the position
that there was no need for interpretation because the words are clear I

1
I

l
1
4'8 SIATEXEXT OF DR. FABREG (AANAMA)-3 V 60
and have a :definite standard and well-knowmmeaning. But, even if we
were to assume that the words were not entirely clear, if we had to inter-
pret them, that does not give the Assembly of IMCO an unlimited right
and discretion to reach any conclusion which they thought hest. No; that
only meant it had to interpret them according to the well-known rules of
treaty interpretation, namely, the language, the meaning of the language.
the taking of the Convention asa whole,precedents, what othertreatiesin
the matter said, the consequences of interpretation; aU the well-known
les of the statutory construction. Xow the IMCO Assembly was just
as hound hy those rules of interpretation as courts are in interpreting
any treaties, and that is what we contend: that even if there was room
for interpretation, the interpretation had to be according to those rules.
But that is where, 1 think, the main fallacy of the position of our op
ponents lies:And 1 think. Mr. Prcsident. ri~ht-then and there is where
;vc think tve stiould alq~lya case ivliicli \i.cuiisidi.r vcry irnporrant in
tlie prcsent deb&te,tvhich 15 ttie IJo/tslr.YalionulilyCise. Iiiterpretation,
the processof interpretation, cannot cnable the interpreter to rëconstruct
the treaty.) It is very interesting in this connection to note that the
Representative of the Unitcd Kingdom makes the statement, much to
my surprisè, that, "Well, the Members of IMCO willnot have to act like
judges. No!iThey have discretion." Now 1think thatthat is an untenable
statement. phe Members of thc Assembly of IMCO,as well as any organ
which is crqated by a treaty and which derivcs its powers and its criteria
from a treaty, must interpret those treaties properly and according to
legal rules.! But if we Say that "No, because they are not lawyers or
because they are not judges they may interpret the treaty the way they
want", theii 1 do not sce how, when, the abuse of power. the abuse of
discretion of those organs, is going to come for proper review heforethis
Court. No, Mr. President. The Court is bound to sav that there has been
exccis of posvcr.exccss of authoriry or abuse of diicretiuri, iulieiiiiithc
mles of co+truction.rt:tatioii. an). of tliuse orgniis did not follow .hc.prolwr
The Repfesentative of the United Kingdom has been elaborate in
trying to demonstrate that the Admissions case, which we cite as very
pertinent and applicable in this case, is not applicable at aii. And 1
think. without takine too much of t~e ~ ~e of the Court. that this is a
veryimportant precédent,and even if 1 take a littlemore of the time of -
the Court. Iwant to show the close varauel between the Admissias
case and the present case.
As 1 understand the position of the Representative of the United
Kingdom, he says that in this case the IMCO Assembly was not trying
to impose on Members new conditions which were not present in the
Treaty. But we submit, Mr. President, that that is exactly what the
Assembly did. And 1 ask permission to read one paragraph, on page 195
ofthe WrittenStatement of I'anama, whichgives the words of the United
Kingdom's'delegate at the IMCO Convention just before the election
took place:

"In ;regard to Liberia's interest in questions of maritime safety,
itwasjundeniable that the vessels registered in that country were
aniong the niost modern aiid iip-to-dat; intlncworld.'l'hat \r.as.duc to
tlie f:<ct tliat tlic I.il~criaii >Icrcliaiit Nnvy 1:irgelv bclong~d to
exc,:lh:nt I\riicric:in sIii[~divners andri, fr~irrtur I1ecausç STATEMENT OF DR. FABREG (PANARIA)-4 V 60
4I9
Liberia left questions of administration to very experienced inter-
national companies such as Lloyd's.
Thesame was trueofPanama. But the matter in hand was not the
election of the United Statesor of those companies to the Maritime
Safety Committee. What the Assembly had to do was to consider
how far Govemments were interested-in maritime auestions. and
sc~ to what rutint rlicv wcrc iiblc to iijaka,~ontril~uiioiiiisl*:,.iiic
fieldssiicli tlic 1tiriii:liiiigofcrcws, tlic trainiiig of ii.~\,:iI;ircliitcct.i.
tlic coiidiictiiig oi sur\.c).i alter colli,ion?;.thc handliiig of ci~rgoes,
etc.''

Now there were very few speakers in that Conference, and what the
United Kingdom's delegate said (andthere was one other delegate who
into voting as it did. And'I want to emphasize this: that these wordsjority
were said when the election was going to take place as to the eight; and
here, the delegate of Great Britain-and this is the criterion thejority
foilowed-said that consideration had to be given in the election, not
to the aood and DroDercondition of the fleets of those nations. but to
matters -3s tu the ~ontril>iitiiiiisyriific ticlds sii3% tlie fiirnisliing of
crews. Zoiv, 1 nni guiiigri,stop riglit litr~..Hes~uscth,: nhilit!. io Iiiriii,li
crc1r.s.)Ir. I'rcsidriiijonc ni thc r-1i:iiivntsivtiicli accorditue.Artiilc
28, must he taken into consideration for the eleltion of tee six-the
remaining six. So it could not be one of the criteria to be taken into
account in the election of the eight; and yet, in so many words it is here
stated that that was one of the criteria for the election of the eight:
the ability to contribute in the furnishing of crews, the training of naval
architects, the conducting of surveys of collisions, the handling of
cargoes. Mr. President, our position is that, when dealing with the
electionof the eight whohave perse, automatically, an interest inmaritime
safety, these words, which were adopted by the majority of the voters,
amounted to the imposing of new conditions forthe election of the eight
which were not required by the Convention; exactly the same as was
being done in the Admissions case decided by this Court.

[Public hearing of 4 May 1960, morning]

The PRESIDENT:Sir Percy Spender wants to put certain questions
to the Representatives. The questions may be answered when the
Representatives find it convenient to do so. 1 cail upon Sir Percy
Spender to put his questions.
Sir Percy SPENDER:Thank you, Mr. President. One important
question is, what is the meaning in that context of the words in
Article 28 : "eight shall be the largest ship-owning nations"? The
questions 1 desire to put to al1 Representatives, the answers to which
will 1 think assist me, are the following; and the answers, 1 hope, may
be given in summarized form:
Question I: What significance, if any, is to be attached to the dehite
article "the largest ship-owning nations"?

Question 2: Since the word "ship-owning" qualifies the noun
"nations". S~ATEMENT OF DR. FABREG APANAMA)-4 V 60
420
(a) does this word "shipowiing" have one meaning, and one
meaning only, directed to ail States Members of the Assembly, and
(b) what meaning, statedas concisely as possible, does each State
represented 'give to the word "owning ', and what are the criteria
which dete+ine whether, within that meaning, a State owns any
given amouvt of shipping?
Thank you, Sir.
The PRESI~ENT: 1cal1upon the Representative of Panama to continue
his statemeyt.

Dr. FABREGAM : r. President, Members of the Court. 1 do not think
1 have much to cover, Mr. President, before 1 terminate this second
exposition which 1 have been given the privilege to make.
Judge Sir Percy Spender who has put this question to us, that 1 wouldle
like to reserve my answer for aiittle later, until 1have had more time
to think over the question for reply.
Mr. President, in my last intervention yesterday and before closing
time, 1 was:at the point of trying to demonstrate to this Court the
applicability of the Admissions Case to the present case; an applica-
hility whichi of course, has been denied by the Representative of the
United Kingdom. 1 was demonstrating that the expla~iatious given by
the delegate of the United Kingdom before the election of the eighl
members took place were implicitly adopted by the Members that
voted with him: that that, in essence, amounted to the laying down
of condition,for the eligihility as the eight members, which were
conditions ?ot present in Article 28; and they were, therefore, new
conditions which, just as the Court stated in the Admissions Case,
the Assembly of IAZCOhad no authority to interpose into Article &(a).
And 1 even cail the attention of the Court to the very curious fact
that not only were those new conditions, but that at least as to one'
ofthose newconditions, they wereconditions that inArticle 28were stated
as conditions governing the election of the six-of the remaining six;
which of cqurse shows more,patently, more clearly, that those con-
ditions were totally inapplicable to the first eight aiid that it was
entirely unàuthorized, entirely improper, to try to impose those con-
ditions withl regard to the election of the first eight members.
So again,lMr. President, 1 Say that tliis was an arbitrary election,
in the action of the Assembly of IMCO. 1 will repeat that, althoughcy
that has been emphaticaily stated so many times. both in writing
and verball); but a fact that 1 cannot repeat too inuch is that al1
this action ;which we have called arbitrary and discriminatory was
taken in the face of the mandatory language in Article zS(a). +d
the thing that strikes me, &Ir.President, perhaps more than anythlng
else, is the very able, the very strenuous, effort that has been made
hy the distinguished Representatives opposing our position, to get
away from that mandatory language. It is very difficult; 1 do not
think that 1 would be able to do it, no matter how much 1 try. But
the thing that strikes me particularly is the langiiage which 1 find
on page 380 of the Report of the meeting of z May. which contains
the exposéof the Representative of the United Kingdom in which
he says: ! STATEMENT OF DR. FABREG (PANAMA)- 4 60 421

it"is ratl.ingtlic sciiîc of laying down conditiuns for thc giiiclanc~.
uf tlic .4s.irmblyiii{irosceding to t1.ç election."

Now, Mr. President, with your permission and with due respect to
the distinguished Representative of the United Kingdom, 1 think that
here WC are playing with words. 1 do not know-maybe my mind is
not flexible enough-but to me, 1 respectfully submit, to Say that
something is "mandatory" in the sense that.it is a guide is a plain
contradiction. If 1 mav be ~ermitted. 1 would like to recall to mv
distinguished colleague'a ve;y famous phrase from the literature ch
his own country: "To be or not to be, that is the question". Somethine
is mandatorv Or it is not mandatorv. But to sâv that somethine &
mandatory, in the sense that it is a guide or a di;ective, to me is yust
a plain contradiction in terms.
Mr. President, 1 am now approaching the final part of my inter-
vention, but by way of parenthesis 1 wonld like to refer to one point
of fact,urely for the sake of making the record straight on the matter.
And 1 refer to the statement made by the Representative of the United
Kingdoni, which appears on page 386 of the Record of the hearing of
2 May, in which he refers to the session on 15 January 1959 when
the election took place, and 1 read:
"Moreover, the action of the Assembly was overwhelmingly
endorsed when. after it declined to elect Liberia and Panama to
the Maritime <afety Committee, France and the Federal Republic
of Germany were both elected on a roll-cal1 vote bv2.3votes to
two, with three abstentions." . -

1 suggest that it is very significant that, after Liberia and Panama
had heen rejected and although certain States said it would be incon-
sistent with the legal view to vote for France and the Federal Republic
of Germany, nevertheless, 23 Members of the Organization voted in
favonr of those two States and regarded them as falling.within the
"eight largest ship-owning nations". Surely that is an ovemhelming
majority of the Organization?
Now, MI. President, this is the kind of statement that, although
it is tme, 1 Say is misleading, and 1 Say that becanse it does not tell
the complete story.
Why doesnot the distinguished Representative of the United Kingdom
make reference to the voting, when the voting took place as to Liberia
and Panama? The voting as to Liberia was 14 against, II in favour,
3abstentions. The vote on Panama was gin favour, 5 abstentions and
14 against. Of course with Panama there were less votes in favour
Liberia; so letbeus take Liberia as the key voting on that point:on
14against, II for Liberia, 3 abstentions. Snrely that wasa very close
election. There was only a difference of three. The abstentions
alone could have switched the election one way or the other. So, why
the emphasis on the 23 votes that subsequently were given in favour
of France and Germany? To me that has absolutely no significance;
to me it is a very strained, a very far-fetched, a very remote deduction,
to deduct from that heavy voting in favour of France and Germany
a viewpoint or a criterion of the Assembly with regard to the position i

422 ~T!ATE&~ENTOF DR. FABREG (AANAMA)-4 V 60
of Liberia and Panama. The 23 votes were produced when the voting
on Liberia ind Panama had already taken place-when it was a fart
accompli. The show had to go on, if 1 may use that expression. So
even if it fiad been a unanimous election in favour of France and
Germany, that would have no meaning whatsoever on the question
of the thought, of the criterion of the Assembly, as regards the voting
on Panama !and Liberia.
1 Say that this is the type of statement that ought to be clarified.
And 1may spy, hfr. President, that we have had avery similarsituation,
on which 1 was commenting yesterday, when the distinguished Repre-
sentative of;the United Kingdom made reference to the situation in
1948, during the INCO Conference. He made a statement which was
equivalent to saying that, in 1948, the question of tonnage registered
under the Panama flag did not carry weight-well, this is the essence
not been elected to the Council on the basis of tonnage, and thead
representatite of Panama had withdrawn from the Assembly. Again,
he makes a statement which is true: that Panama was not elected to
the Council, and the Panamanian delegate finally withdrew from the
Assembly. But that does not tell the whole story, so again1 say that
in that sense it may be misleading. He does not tell the wliole story,
because P+ama, on the basis of tonnage, and after the delegate of
Panama ma,de evident the matter of tonnage under the Panama flag.
was appointed as a Member of the Working Party of the Assembly,
which Working Party was very important in the sense of being the
sort ofteenng Committee of the Assembly. So tonnage and registratiou
under the Eanama Bag did have a positive weight in tlie minds of the
Members of the Assembly.
Now 1 come, Mr. President, with your permission and the permission
of the Cour{, to the last of the four headings which 1 had chosen as
a division of this presentation, and that will be the shortest of all,
because 1 tlnk that we wiii be dealing with a subject-matter which
1 consider is not particularly relevanto this debate, and that is the
onFrankly, IMr. President, we think that al1 the literature that has
been presented here on "genuine link" is beside the point, it isirrelevant.
If1may be,permitted to use a figure of speech in a forum of thisnature,
1 would say that "genuine link" is the "Big Stranger" in tliis whole
debate. When does the notion of "genuine link come into this contro-
versy? We fail to see that. Of course "genuine link" is not law. is not
in effect yet-that has been brought out; but, even if it were law,
the "genuine link" theory would have no proper application in this
case.If this' were a case in which somebody would argue that a certain
flag was grinted by a certain country, to a certain ship, and that such
flag registration should not have been granted or that it was improperly
granted, then we would have a case for the arguing of the "genuine
lin!? theory, assuming that it were law. Rut nobody has suggested
here that the ships now under the Panama flag, or under the Liberian
flag, should not have been granted those flags, and should not have
been registered in the respective countries. As a matter of fact, we
submit that not even at the Assembly-nct even the delegate of the
United Kingdom, who was the leader in speaking for the majority
in the Assembly-neither he nor the other delegates ever suggested STATEMENT OF DR. FABREG (PANA~~A)- 4 60 423
at that time that that was the question. In fact, the delegate of Great
Britain-and we make proper references to bis remarks in our Written
Statement-said: "we are not dealing with the question of flags of
convenience, that is not in debate". In fact, he went even further
and made a praise of the fleets registered under the flags of each of
those two nations, but that is beside the point now. So at no time
has any question ever been raised as to those flags having been properly
or improperly granted. So al1this talk about "genuine link", interesting
as it may be, is really beside the point, and we have, al1 of us (and 1
take my share in that blame and in that fault), we have al1 taken up
considerable time of this high Tribunal with these expositions on
"genuine link", and of course 1 wish to apologize formy part in taking
up the time of the Tribunal on that subject.
Just to finish with that topic and in a summary way, 1 repeat what
1 said in my first intervention. "Genuine link" is not law, is not inter-
national law, because it is contained in a Convention which has not
been ratified by the number of States required. In fact, 1 think that
only one, to my knowledge, has ratified that Convention. 1 went on
and said in my first intervention that we should be thankful for the
fact that the "genuine link" is not law, because-and 1 made reference
to an admirable study in the last number of the American Journal
of International Lazc-the "genuine link" doctrine, a vague and im-
precise doctrine as it is worded in that Convention, can do tremendous
harm in international maritime life and in international relations;
because if it were the law, it might lead to a number of situations in
which a third State will be at liberty not to recognize the flag of a
State and, therefore, would be introducing disorder and chaos in the
life at sea. And of course the thesis of this study, to which 1 respectfuliy
refer the attention of the Court, is that we must have law and order
at sea, and that the recognition of the nationality of a vesse1 must
be a clear and definite proposition, must be guided by a definite
standard. Ships at sea cannot be subject to the individual subjective
action of al1 the other States, as to whether they wish to recognize
or not to recognize the flag that that ship is flying. It is a very senous
highosseas, subject to the danger of their flags not being recognized
through a process of subjective analysis and decision of the individual
States.
Mr. Presideut, Members of the Court, on behalf of the Republic of
Panama, 1wish to submit that the statements that 1have made in this
last intervention of mine may be summarized by way of the following
conclusions :

(1)"Ship-owning nations" means "nations having tonnage registered
under their flag" (and in that respect 1 give, in part, my answer to the
Honourable Judge from Australia; that it has that sense and that sense
only, and 1 repeat: "tonnage registered under the flag of that nation").
(2)That that beingthecriterion, and the inly criterion, both in inter-
national law and practice, it is a secondary proposition, or rather a
proposition of secondary importance, of subsidiary importance, which
reference is to be used to determine the fact ofnnage reristered under424 STATEMEXT OF DR. FABREG (PAN.~MA)-4 V 60
of tonnage is a secondas. proposition and not one of the decisive
aspects of tl!is debate.
(3) That the meaning of "ship-owning" having been determined, and
the reference-a proper, authoritative reference to establish that tonnage
daving bèen chosen, nothing is left but the mandatory instruction to
proceed to the election of the "eight largest" appearing in that list-
the nations1 with the largest tonnage appearing in that list in their
uninterrupted order.
(4) That although Panama lias well established, in the proceedings,
its Droner ahd im~ortant interest in maritime safetv. which Panama is
reiteratiiig iioibl,its \ers insijtence ;ind dcsiret<;~>;irticil>:nt ttiis
Comrnittee-l rept.;ittlint altlioii~h Panania has establi.ilied its important
interest in maritime safety,as aproposition of law it was not necessary
forPanama, or Liberia, to establish that important interest in maritime
safety independently of the fact of its being one of the "eight largest
ship-owning nations", because that fact automatically established
Panama's important interest in maritime safety.
(5).That hhe election of the first eight members-or may 1, with your
permission, 'Mr.President, put it in another way-that the fact that in
the electionlof the fourteen members tlie choosing of the first eight was
mandatory,and was based upon the fact that 1 have just mentioned,
shows that there was no discretion as to the selection of the first eight,
but only with regard to the remaining six, and that the exercise of
discretion on the part of the Assembly was unwarranted, was unauthor-
ized on the:part of the Convention. Rut, we go further: we Say that,
even ifwe were to assuine for the sake of argument that the Assembly
was entitled to discretion as to tlie selection of the eight, the Assembly
was bound to exercise that discretion within the weil-known rules of
1;iircgarding ttie iisof diicretioii. hitlintriei.ertlielccs, the :\sseiiihly
maclean abuse of tli;cliscrctioii:,nd used tliat diicrc.tion in an :irbitrary.
ca~ricious and discnminatorv manner. and therefore the selection shouid
b< declaredl invalid even under that supposition.
(6) We said that the "genuine linl'" doctrine is irrelevant, has no
application !O the present case, and of course1 may add that, even if it
Iiad some bearing on the case, no evidence has been submitted that there
is no genuin~ link between Panama and Liberia on the one side, and the
ships registered respectively under the flags of Liberia and Panama on
thSo, MI. President, the Republic of Panama respectfdy submits that,
in view of these conclusions, the question that has been put before this
high Court for an Advisos. Opinion should be answered in the negatire,
and we so respectfnlly request once more.
1 only haye to Say now, to terminate, that 1wish once more to thank
this high and most honourable Court for having granted me the privile e
of appearing twice before the Court in these oral hearings. 1 am high y
appreciativ? of this privilege on behalf of my Govemment and in my
own rame, ?nd 1 shall always consider it a great honour to have been
present before this high and most honourable Court. 1 thank you.
1 12. SECOND ORAL STATEMENT OF Mr. HAGER
(REPRESENTIN GHE GOVERNMENT OF THE UNITED STATES OF AMERIC:~)
AT THE PUBLIC HEARING OF4 MAY 1960, MORNING

Mr. President and Members of the Court.

1 wish to express my appreciation for the opportunity of making a
second Statement to the Court on behalf of the Government of the
United States. These oral proceedings have already extended over
to Say will be new material of use to the Court.d 1hope that what 1have
1 should also like to express my regret at the absence of Judge Hack-
worth and Judge Lauterpacht from the hearing due to illness, and my
hope tliat each will enjoy a speedy recovery.
1 should like next to state, with respect to the question asked by
Judge Cordova at the close of the afternoon session on Monday, that 1
do not at this time have any information with regard to the tonnage
owned by nationals of Liberia and Panama respectively at the date of
the election of the Maritime Safety Committee, January 15, 1959. 1
have communicated with my Government in order to ascertain whether
it has any reliable information of that cliaracter which could be presented
to the Court as requested.
As to the point of view requested in that connection, 1 would like to
refer back to the passages in my Oral Statement of last Thursday,
28 April, set forth at pages 6 to 8 in the uncorrected transcrip[cf.
@.3221. in which 1 stated the grounds for the viewthatthe tests based
on ownership by nationals, suggested by the Government of Norway and
certain others, would be impracticable and unworkable.
As to the questions askedj~Sir Percy Spender this moming, 1would
prefer to study the exact language of the questions before attempting
an answer.
1 should now like to comment on two matters wliich have been raised
during the course of the oral proceedings which refer particularly to the
United States.
The learned Representative of the United Kingdom, in the course of
his Oral Statement rendered on Monday morning, 2 May, took occasion
to cal1 to the Court's attention Document No. E/CONF/~/I~, dated
February 23, 1948, introduced by the United States delegation at the
United Nations Maritime Conference held in February and March of
1948. In that connection, he quoted from that documenta brief passage,
the essential part of which had also been quoted by the Italian Govern-
ment in its Written Statement, at pages 224 and 225 of the printed
volume. 1 regret the necessity for taking up the Court's time with
appeared to be drawing some conclusion from inconsistency betweentative
language contained in that 1948 document and the position of the
United States at the ~resent Droceedine. 1 feel tha1oueht to make a
brief statement in thk regard. u. -
1 should like to say first that the Conference document in question
consisted entirely of a reprint of an article previously published in the426 : STATE\IEST OF \IR. HAGER (u.s..+.)-4 v 60

L)epnrtnie~itO/Stnte Bzrlletin. The purpose of this article had been to
describe the historical developments from 1897onward, leading toward
a world maritime organization, which were about to culminate in the
then impending United Nations Maritime Conference of 1948 After
over twent) pages of detailed discussion of that history and background.
tlie article/ concluded with a brief description of the tentative IMCO
Conventio?. Sonie of this descriptioii consisted of direct quotatioiis of the
langiiage of the draft Convention, but other portions took the forin of
a somewhat loose, and occasionally inacciirate, paraphrase of certain
provisions lof the Convention.
The very passage quoted by Italy and the United Kingdom is an
incorrectly paraphrase the draft Convention language as to the eights it
largest ship-owiiing nations, but it also takes the draft Convention
language reading "an important interest in maritime safety" and
arbitrarily paraphrases that to read "the greatest interest in maritime
safety". It: is submitted that no legal significance ought to be attaclied
to this ki?d of loose description in what was not a legal document.
This was ?n article written and published for popnlar consuinptioii. It
was in no seiise a careful legal analysis of tlie draft Convention, nor was
it intended to be such. The United States delegation did not submit the
article as reasoned statemeiit of its legal position on the language of
the draft ,Convention, but rather purely for background information,
as a matter of possible interest to otlier delegations at the Conference
because of its descriotion of the historical derelonments which had
preceded the conference. It was specificallystated at ille beginning of the
Conferencè Document itself that the article was "submitted to the
Conferencefor information as representative of background development
leading up to the present Conference". Under the circumstances, it
would seein that the passage in question h:is been made the object of
consideraoy more emphasis and attention than it warrants.
1 miglit jsay 1 believe that this niay have come about quite naturally
because of!the fact that Document No. 52, filed witb the Court in this
proceeding by the Secretary-General of IMCO, relating to the travaux
préparatoifes,was only an extract of the passage in question and it did
not set forth the remainder of the Conference Docunient submitted by
the United States delegation. 1 would, therefore, like to submit the full
ConferenceDocument to the Court if1 may be permitted to do so.
If previous statements of the United States' legal position are indeed
relevant to this proceeding, homever. the United States delegation made
that legal position abundaiitly clear at the first sessioii of the IhICO
Assembly, out of which this proceeding arises. Pursuant to its instruc-
tions, the delegation took the position thatthe eight largestship-owning
nations were those with the largest registered tonnage of ships. In that
connection, 1 would like particularly to refer the Court to the footnote
in the \trritten Statement of the United States, appearing at page 118
of the prifited volume.
1 should next like to discnss a statenient made by the learned Repre-
sentative bf the Govemment of Xonvay during the course of his Oral
Statement. 011I'riday, zg April. He argued that the Assembly. iii re-
Comniittee, took into account differences between tliose countries and
others with regard to the conditions of registration of vessels under their laws. In this connection, he cited a report entitled The Role of the U.S.
Merchant Marine in vati ion aSl ecurity which, he said, "describes the
extent of United States control over American-owned ships under
Panamanian and Liberian flaes as comnared to the modest control
exercised by the flag countries'? 1am not'certain as toexactlÿ ivhat the
intended implication of Iiis statenient was. However, the iinplication

mav have bien that American-owned shi~s under the I'anamaAian and
I.il~çri:iii13:iire priiii:irily re~iil.iri11s III,:Ciiitr<l ;t:itc.i Goi,criiiiicnr,
,.lid orily ~i.coii~l.,rily.iiirl iiitiilc.iltlirn,>ti;>n.nil rr:gistry tliciii.:tilvr.~.
I Iiis 1s;ihjuliirel\~iiicorrect. :iiiiuuitt. Ii,:it;iii:ittliiiI:ire srnec in rlic
proceedings to kke up nny furthér time of the Court; howek, since
this aiiegation may have been made, even though only somewhat
lightly, 1 believe it is important that the Court be in possession of the
correct information on this j~articular subject.
Mr. President and Alembers of the Court, it is well kno\vn that a

substantialnumber of vessels ofAmerican ownership are registered under
Liberian or Panamanian laws, particularly tankers and bulk carriers.
Such registry has taken place over the years for a number of economic
reasons, a subject which has already been discussed at length in the first
Oral Statement of Liberia last week. Nuch of this tonnage is regarded
by the United States as essential for its national defence needs in the
event of possible war.
Under United States law, diiring any national emergency dcclared by
proclamation of the President, the United States Government may

requisition, purchase or charter any vessel owned hy citizen5 of the
United States, subject to the pnyment of just compensation. 'rlie statute
in question is Section 902of the Merchant Marine Act of 1936, as amended,
and it is codified as Section IZJZ of Title 46 of the United States Code.
However, if the vessel is transferred to' foreign ownership, such as
ownership -y a~foreign corporation, this right to requisition for war or
emergency purposes ii~ould~becomeinapplicable.
Futher, United States flag vessels are also subject to various prohibi-
tions against trading with respect ta arms and other cominodities, in
cert:iin ~co,or;ipliicnl~nrc:is.iin~l<:rlicpnriiiiciit ol ioiiiiiiércc 'l'rnn.cpor-

t:itioii Orderj'f-i 1ncl.1'-2,ivliich arc ~~iiblislit :it 'litle :jz:\, Cli.il>[er\'II
of rhc CoiIr, i,f I~i.~lcr;I<~~giil;tfiuii.j\. tr:in;f?r ti, f<).~igi.~egisfr!vi,iilil
also render these regulations inapplicable.
It has been considered iniportant that vessels of United States owner-
ship and registration, and vessels constructed in the United States,
remain subject to emergency Government requisitioii in the case of war
or emergency and to the above trading restrictions, even though their
owners may for various reasoiis desire to transfer them to foreign owner-
ship or foreignregistry. Accordingly, such foreign transfers are permitted

only where the new owner agrees to comply with those two conditions.
This continuation of the vessel's availability for emergency use by the
Govemment has been referred to from a national delence standpoint
asthe concept of "effective United States control". It is not lounded on
treaties with other nations, but depends upon private arrangements
with the shipowners. The legal basis for these arrangements is as follows:
The United States law vrovides that in time of war or a lawfullv . .ra-
cl;iirncd eiiii.rgciic\.-niiil iiichn st;iti. <.fviii~rgcncycsisti st th,: prcit.iit
iiili~I>yI'rcjl~iclii1;ii~irucisiil:i1loii---ii1iilii:i\ifiti, 1r:iiisfcr Io f~,rcigli
rt:gi,rr,$:,TB!v~s~~. ,lwiic(I ,IIivli~lcor 11,lJ,trl ljy Cnilccl S1;itt:j clt~7.c11428 STATEMENI' or; MR. HAGER (U.S.A.)-4 v 60

or corporation, or to transfer such a vessel, or anv United States reeis-
tered Gessei,to a person not a citizen of the United States, without pÏior
authorization from the Maritinie Administrator. There are also restric-
tions on the transfer to foreign re istry of vessels constructed in the
United States. 1refer to Section37 o the Shipping Act of 1916 ,s amend-
ed, codified as Section 835 of Title46 of the United States Code, and tu
the delegation of the authority thereunder to the Maritime Administrator.
. The Maritime Administrator's authorization is thus required if the
transfer abroad is to be lawful. When a United States citizen or corpo-
ration seeks to transfer a vessel owned by it to foreign ownership or to
register it under foreign law, or when a new vessel is constructed in the
United Statesfor foreign ownership or foieign registry, if the vessel is of
3,000 gross tons or over, the Xaritime Administrator mil1impose certain

conditions to his authorization of such transfer in accordance with his
published policy on the subject, which appears at Title 46, part 221 of
the Code of Federal Regulation.
These conditioiis are the two conditions referred to a moment aeo

rëquest in time of war or emergency on the same terms and conditibons
that apply to a United States citizen by law. An exception is made in the
case of transfer to the registry of a nation which is a signatorji of the
North Atlantic Pact or NATO. The NATO nations have agreed to com-
mit the prepotiderance of their shipping to a common pool in event of a
NATO war. The second conditioii is that the vessel shall not engage in
trade prohihited to United States flag vessels under Department of
Commerce Transportation Orders T-I and T-2 referred to earlier. The
autliorizatioii will also contain certainsupplementary provisionsdesigned
to continue the two basic conditions in force in the event of subsequent

transfers or mortgages, and also provisions of an implementing nature,
such as a provision requiring the foreign onner to furnish a surety bond
to secure performance,payable to the United States in the event of de-
fault. Where there is a transfer to foreign ownership, as distinguished
from registry, the coriditions are also included in a contract between the
United States transferor and the foreign transferee.
Violation of any of the conditions to the Maritime Administrator's
authorization of the requested transfer.constitutes a violation of United
States law and a breach of the contract betiveen the two private parties,
and payment may have to be made to the Government on the surety
bond
When a vessel i~-tra~isferred from~U~ited States reeic3rv2to a foreie--
registry, the existence of these conditions of course hecomes known to the
foreien State in auestion. However. it must be stressed that these con-
ditiok are not t6e subject of any treaty, convention or inter-govern-
mental agreement of any kirid with the foreign flag State, but purely
private arrangements with the shipowner.

The important point, from the standpoint of what is concerned in this
proceediiig, is the fact that once the vessels are thus transferred to foreign
registry, they become flag vessels of the foreign country andas such are
fully subject to al1 of the maritime safety regulations and other laws of
the foreign country applicable to shipping. Thcy are no longer United
States flag vessels and are no longer subject to any United Statesregu-
lations as flag vessels. STATE~IENT OF >IR. HAGER (U.S.A.)-4 v 60 429

1 hope that the foregoing somewhat lengthy and technical explanation
will help to explaiii to the Court the nature of the conditions \vhich the
United States Government imposes on the shipowners in connection with
the transfers of United States vessels to foreign ownership and registry,
and clarify the point that the arrangements in question have iio bearing
on the subject of this case. If the Court should desire any further infor-
mation regarding this matter, 1shall, of course, beglad to submit it upon
request.
llr. President and Alembers of the Coiirt, once again, the Oral
Statements of the learned lieprescntatives of Liberia and Panama have

been most thorough and comprehensive, and 1 believe that at this stage
of the oral proceedings the significant legal points in this case require no
further commeiit.
1 should like to add just one final remark. The fundamental issue in
this case is whether the eight largest ship-owning nations, from the stand-
point of the quantity of tonnage of shipping registered under their laws,
are entitled to be members of the Maritime Safcty Committec of IMCO.
In the submissioii of the United States. the langtiage of Article 28 (a)
itself, the practical realities of the maritime world, and the expressed
fundamental objectives of the IMCO Convention itself, al1 combine to
lead irresistibly to the conclusion that those eight nations are entitled

to that membership. Those nations which have the duty and power to
adopt and enforce maritime safety regulations for almost three-quarters
of the world's registered tonnage were clearly, and wisely, intended to be
members of this basic organ of IhICO, so that as such members they
could ~artici~ate from the earliest staees in the formulation of the mari-
tiiii,: ~afcty ~giilxtii>iis hose segencrnl ;itli>lirms>ftliih:oic ohjccti\.e
of I.\lCO. 1 tlicrcforc siibiiiit uiicc niore thar fur thcscrr:l$i>nsI.ili<:ria
aiid l'nn:ima iwre hoth ciititled IO I>eclrvt~rilas.\lt.riil,~.rsof the \I:iritiiiie
Safety Committee.

In closine. >Ir. President and Alembers of the Court, 1 wish to thank
\,ou :%i~inrur proi,iding me \r.ittitlitopportunity tu iiddrcj, arl<litiuiid
rc,in:irkti>tlic Coiirt of h~.hail111\(;o\'eriimcnf. and :ilSufur tlie ~):iticrit
and courteous consideration which you have accorded to my Second
Oral Statement. 13. SECOND ORAL STATEMENT OF Mr. RIPHAGEN

(REPRESENTING THE GOVER~MENT OF THE XETHERLANDS)
.4TTHE PUBLIC HEARIAG OF 4MAY 1960, MORNING

Mr. President and Members of the Court.

In respect of the question put to the Representativcs by Judge
Cordova, 1 might perhapssay that 1do not possess at present iiiformation
which would permit me to give a prccise figure in respect of the owner-
ship position of ships registered in Liberia and Panama. And, in so far
asships registered in the namc of corporations are concerned, it would
seem difficult to get at short notice full information in respect of the
nationality of the beneficial owners at the date specified in Judge
Cordova's question. II1ith regard to the questions put by Judge Sir Percy
Spender, 1 might perhaps recall to the Court the words of a philosopher
who, when writing to a friend, said "1 am writing you a long letter
because 1have no time to mite you a short letter". 1respectfullyrcquest
the permission of the Court to study these questions somewhat more
carefullyinorder to be able to reply in the most summarized form.

Mr. President and Members of the Court, with regard to the Oral
Statements made today and yesterday by the Representatives of Liberia,
Panama and the United States, 1 may perhaps be permitted to make a
very short observation. It is respectfully submitted that, in Our opinion,
the question laid before the Court could only be answcred in the nega-
tive if the Court were to adopt the position that, firstly, there is absolute
right of specific States to be elected as memhers of the Maritime Safety
Committee, and, secondly, that such ahsolute right is solely-solely-
dependent upon the amount of tonnage registered in theState coricerned.
1 have tried to show that the arguments advanced in the Written State-
ments of Panama, Liberia and the United States do not offer any support
for either the first or the second contention. The Oral Statements made
yesterday and today by the Represeiitatives of Liberia, Panama and
the United States have, in Our submission, not brought out any really
new point on which a comment on Our part would be required. 1would

therefore, with the Court's permission, limit myself to state thatmy
Government maintains the conclusions set out in its previous Statenients. 14. SECOND ORAL STATEMENT OF Mr. VALLAT
(REPRESEXTIN THE GOVERNMEZTTOF THE UZTITED KINGDO~I)

AT THE PUBLIC HEIIRIZTG OF 4 MAY 1960, MORNIKG

Mr. President and hIembers of the Court.
May I associate myself with the expressions of regret at the absence of

Judge Hackworth.
Now, 1 am not at present in possession of information ivhich would
enable me to give the figures for which Judge Cordova asked, nor can I
usefully add to the comments already made on behalf of the United
Kingdom as to the significance of statistics in this case.
With regard to the questions which have heen asked hy Judge Sir
Pcrcy Spender, 1should like to offer some provisional comments although
it may he necessary later, if 1 may with the permission of the Court, to
submit the answers in \v~iting. Itmay not be necessary.

As to the first ouestion. 1 think the sienificance of~th~ ~ord "the" bv
itscll is iiot :.r,.~r1:riiitrclytli~i~iiru<~lti~.i<iriiI IO [liti1e~iril.11~11
<Bi :i<.I~is.l'liriiiiix,ri;,iir i~uiiirli:iiittri~rit;i>IInt r1.v ~.siiri.jsiriii
"ship-owniiig nati6nsn. .
As to the second question, 1 would first comment that it is, with the
greatest respect, not necessarily right to identify the word "nations"
with the word "State". If 1may refer to earlicr articles of the Convention,
in Articles 5 and 7 and 8 of the Convention, dealing with membership,
the word "States" is used, and 1 suggest, used quite deliberately. In
connection with membership of the Council, in Article 18, the expres-

sion used is "Governments of the nations", and the word "States" is
avoided. In Article 28,again onefinds that the expression used is "Govern-
ments of the nations". Therefore, 1 suggest that the Convention, in this
respect, was not trying to lay down a technical test with reference to
States but was drawn rather more broadly and rather more freely in
terms of nations.
Siibject to those comments, may 1 try to answer first question z (a)
on the meaning of the expression-if 1 may with respect take the whole
of the expression-"ship-owning nations"? It has thc same meaning

for al1 Members but its applications must depend on the facts in each
country.
AS to question z (b), having regard to the remarks which 1 have
already made, perhaps 1 may be forgiven for trying to Say briefly what,
in our suhmission, is the meaning of the expression "ship-owning nations"
as a whole. It is, as 1 have pointed out before, a unique and broad ex-
pression enabling the Assembly of the Organization to iake iiitoaccount
al1 relevant factors, including registration, beneficial ownership and
otherfactors relating tu the real connection between ships andnations. It
is here that there is room for, and need for, a measure of discretiori or
judgment by the Assembly of IMCO.

Mr. President, with regard to the statements which have just been
made, 1 should only like to comment on two points. The only reason
that 1 wish to trouble the Court at this stage is becanse it has been
suggested that 1 misled the Court. STATE~~ENT OF 'IR. VALLAT (u.K.)-4 v 60 433

Well, that, hIr. President, is the story, and 1 hope the Court will
accept that 1 in no way misled the Court on the facts.
and the United States, in my submission, nothing essentially new has
been added. The relevant information and comments have been laid
fully before the Court and the issues have been made clear. We are
al1 agreed, 1 submit, that the heart of the matter is the interpretation
of the expression "largest ship-owning nations" as used in Articl(a)8
of the INCO Convention. Put in another way, the question is whether
the Assembly of IMCO is, for thc purposes of elections to the Maritime
Safety Committee, bound by the figures for gross registered tonnage
on the register of each Member State of the Organization. 1 submit
that the answer to that question is clearly "No" and, in support of
this view, am content to rest on the Written and Oral Statements
already made on behalf of the Govemment of thc United Kingdom.

Mr. President and Members of the Court, 1 thank you for this further
opportunity of commenting and 1have concluded my second Statement. 15. REPLY OF MI. WEEKS
(REPRESEXTIK GHE GOVERKMENT OF LIBERIA)

AT THE PunLIc HEARING OF 4 MAY 1g60, AFTERNOOE;

The ~'ResIOEKT: The hearing is open. The object of this meeting
is to give the Rcpreselitatives who have not yet answered the questions
put by Jiidges Cordova aiid Sir Percy Spender an opportunity to do
so bnefly.
1 cal1 upon the Representative of Liberia.
Blr. ~VEEKS:&Ir. President and hfembers of the Court.
May 1 take this opportiinity of replying to the questions put by
Sir Percy Spender to the Representatives this moming? 1 shall reply
in summary form, as requested by him.
As to the meaning aiid effect of the word "the" in the phrase "the
largest ship-owning nations", my submission is as follows:
(1) The furiction of the word "the" in this particular context is to
give a specific quality to the concept of "largest ship-owning nations".
It makes clear that we are dealing not generaiiy with largest ship-
owning iiations, but quite specificaliy with eight in particular, and
those eight are the eight which are the largcst.
(2) Taken by itself, "largest ship-owning nations" simply describes
a category of States.t crcates an indefinite class. But when the number
eight is attached to the class, and when the word "the" is introduced,
the class becomes definite. If one reaùs the phrase first without the
word "the" and then with the word "the", its limiting effect becomes
clear and apparent. It completely excludes a freedom to choose any
eight from amongst largest shipowning nations, and it limits the choice
to those eight which are objectively the eight largest.
(3) The use of the word "the" reflects the interition of the draftsmen
to refer to a precise, objectively ascertainable, groiip of eight States.
It excludes any room for the exercise of a discretion, and therefore
hlembers are not entitled to elect other than those nations which
are the eight largest.
The second question, wluch relates to the meaning of the word
"ship-owniiig". piit I>ySir Percy Spender this moming. falls into thre
parts:
In the first part, Sir Percy Spender asks whether the word "ship-
owning" creates a uniform standard which is to be applied by ali
hieinbers of the IXCO Assembly. 1 would answer this question in the
affirmative. It creates, in al1 the circumstances, a single, uniform,
objective standard which must be applied by al1 the hfembers in the
same way.
In the second part of the question, Sir Percy Spender asks what
iiieaning each State gives to the ivord "owning". In this context-
and having regard especially to the word "sliip" which is joined to
it-we submit that the word "owning" meaiis registratioii. In other
words, a ship-owning nation is one to wliich ships helon.4ship belongs
to the nation with which it is registered. This is really the only con- . REPLY OF AIR. \\'EEKS (LIBERIA)-4 \'60 4'35

venient and satisfactory test that can be applied if the objective
character of the criterion is to be maintained. Aforeover. bv reference
to the two principal miiltilateral treaties on safety mattérs in force
at the time the lMCO Convention was drafted, it is clear that the
draftsmen had just this test in niind. My Government has also sub-
mitted, alternatively, that if registration is not the appropriate test,
then the only other test that could possibly be applied is that of
ownership bv nationals of the Mcrnbers.
In thé thid part of the secoiid question, Sir Percy Spender asks
what are the criteria which determine whether a State owns any given
amount of shipping, in the seiise which wc have just given to ii. As
to this, my submission is that the determination must be made by
reference to the objective facts iiivolved. In the present case. the
Assembly of INCO adopted the figures of registration in Lloyd's Register
of Tusnage, and adhered to the ordcr laid down in that Table, el-en
when electing France and the Federal Republic of Germany. The
Assembly is not necessarily bound to use this method. It may adopt
another method of ascertaining the facts, as, for example, by asking
individual hfembers to certify what their tonnage is at the date of
the election. Rut whatever method the Assembly adopts, it must be the
only method which is, in fact, applied by al1 Alembers participatiiig in
the election. It is not perniissible for oneMember to use one method,
and another Member ta use a different method. Again, whatever method
the Assembly selects, it is always bound by the limitation tliat that
method must not be used so as to givc the Members a discretion
enabling them to depart from the strictly objective critenon iiivolved.
1 need hardly add that, in determiiiiiig what the registered tonnage
of each State is, Members do not have the right to counterbalance
the objective registration figures by reference ta subjective and un-
between the ship and the Statc of registration. If the application of
siich factorsis permitted, the objective character of the basic criterion
is dcstroyed.
hlr. President and AIembersof the Court, before resuming my seat,
may 1refer once again ta the qiiestion put, the day before yesterday,
by Judge Cordova as ta the tonnage owned by nationals of Liberia and
Panama at the date of the election of the Maritime Safety Committee.
Yesterday, 1 gave the Court a preliminary answer based on figiires
relating to the position existing on31 December 1958. 1 then said that
1 would seek further information as to the position on 15January 1959.
1have now received that information, and it is as follows: on~j January
1959. Liberian nationals owned 6,124,572 tons of shipping registered in
Liberia.
Mr. President and hlembers of the Court, Judgc Cordova also asked for
the uoints of view of the Ke~resentatives on these figures. There is one
shok comment which, in the Circumstances, 1submit that 1may properly
make. It is that the question was asked of al1States represented in tliese
proceedings. It is,1 submit, an interesting and significant reflection of
the difficultiesrisine out of the adoi~tionof anvothertest than reeistra-
tioii, tlint iieitlier thc Sctlicrlands no; ttie ~11itr.dliingclumti;i\~eI>rc;dilced
tlie rieures\vliicliwcrcask~.ilfor. l'liissiia;1lack <ikii<~ii.leila.liicli
has direct bearing on our submissi& relating ta the ese6ise of a
discretio~iin this case. If those two States did not even know the figures436 REPLY OF >IR. WEEKS (LIBERIA)-4 V 60

relating to tonnage owned hy Liberian nationals, or hy Panamanian
nationals, how could they have had sufficient knowledge to exercise any
sort of a reasonably founded discretion?After all, apart from registration,
the figures relating to ownership by nationals are relatively the easiest
to ascertain. As was generally admitted, those relating to interests hehind
such ownership are much more difficult, if not impossible, to find. How,
in these circumstances then, can the United Kingdom Representative
speak, as he did again this moriiing, of a discretion to determine the
existence of a real connection, when such a discretion would have to he
hased on mere guess-work?

Mr. President and Xembers of the Court. as 1 resume mv seat for the
lasr riinc iiithese yror~~rriings,in;iy 1say ng.~in Ii<,\grcati\. Iiuii~>iired1
hci.ii18)the o}q~ortiiiiit! io :i],~x;ir Ilcforrlii.liigli 'l'ril)iin.tl.Ori
heliiili of th,. Gu\~~riiiiii<>fI.ilit,rin ~iid uii I.zhnluf III\iollt:3yuct
Mr. Moore, 1 should like again to thank you for your patience, cour~esy
and the consideration with which you have listened to our Oral State-
ments. Thank you. 16. REPLY OF Dr. FABREGA
(REPRESENTIN THE GOVERNMENT OF PANAMA)

AT THE PUBLIC HEARING OF 4 MAY 1960,AFTERNOOPI
Mr. President, hfembers of the Court.

With regard to the question asked by tlie Honoural>le Judge, MI.
Cordbva, yesterday, in my intervention 1 tried to answer as best 1 could
that question, and1stated that 1was very sorry that 1did not have an
exact answer, ail exact rcply, to the question, but in the general way
1indicated that more than seventy-five per cent. of the tonnage under
the Panama flag was owned by Panama corporations.
To that 1 onlv wish to add that Panama coroorations also own an
appreciable amoknt of tonnage raised under the fiag of Liberia, and also
appreciable tonnage raised under the flac of Honduras. So that in realitv
Panamanian coro&ations own tonnaeeur-ised under each of the thrée
flags, Panama, Liberia and Honduras. 1 again regret to state tha1 am
not in a position now to reply with an exact figure to that question.1
also stated that in so faras the qiiestion might refer to individual owner-
ship, beneficial ownership,1 felt that it might he almost impossible to
get a fully comprehcnsive answer.
\Vit11regard to the question asked by Sir Percy Spender, we respect-
fully beg to reply as follows. As to the first question, our reply is sub-
mitted as follows:
The significance to be attached to the definite article "the" in the
phrase "thelargest ship-owning nations", is the significance normally
attached to the definite article "the", which is that of referring to some-
thing definite and not to something indcfinite. In other words, the signi-
ficance is that theeight,or not less than eight nations, which "shall"
be designated, are notany eight ship-owning nations, noreven any eight
largeship-owning nations, but "the eightlarfest shifi-ownzngnatiows".
On question No. z (a) we respectfully submit tlie following reply:
"Ship-owning", when qualifying the noun "nations", has one meaning
and one meaning only directed to al1 States llembers of the Assembly,
as it would seem unreasonable to suppose that the same word should
have been intended to have different meanings as to different States,
particularly on a matter on which a uniform meaning was necessary so
that al1 members would have a proper understanding as to how to

proceed.
On question No. z (b) our answer would be as follows: "Owning",
if interpreted alone and out of context, generally means "being the owner
of", "having titleton, or a similar expression denoting ownership in the
civil sense. But this same word "owning" when appearing in the con-
text "ship-owning nations", does have a different meaning because of the
evident intent not to refer to ownership by a State in the civil sense-
an interpretation which would he against the realities of the maritime
world. Consequently, the only other acceptable criterion is that of the
ship belonging to the State in the politicalense, that is, in the scnse
that the Statehas jurisdiction and control over the vesscl, including the
right of "eminentdomain", by virtue offlag registration.
That is our reply, Mr. President. 17. REPLY OF Xlr. HAGER

(REPRESENTIX THE GOVERNMENT OF THE USITED STATES OF .\>I\IERICA)
AT THE PUBLIC HE.4RIh.GOF 4 MAY 1960 ,FTERXOOS

>Ir. President and IIembers of the Court.
1 have nothing fiirther to add to the answer this morning that 1gave
to Judgc Cdrdova's question. 1should like ta make the following sum-
mary answers to thc questions put by Sir Percy Spender to thc Kepre-
sentatives at this morning's session regarding the meaning in their
context of the lollowing words in Article 28 of the IMCO Convention:
"Eight shall he the largest ship-owning iiations".
Kegarding Question I,the significancc to be attachcd to the dcfinite
article "the" iii the clause "eight shall be thelargest shipowning nations"
is that the use of theefinite article makcs the class definite, arid ea-
cludes flesihility or ragueness. The function of the definite article in
English grammar is to convey the qiiality of uniqueness. It is therefore
also describeclas a limitingadjective. Inthe clause quoted, the use of the
definite article excludes any interpretation that the eight shall be chosen
from, or from among, the largest ship-owning nations. When coupled
with the number "eiglit" the class designated is definite, particular and
unique-"The eight largest ship-owniiig nations".
Regardiiig Question z(a), the wnrd "ship-owninz" has one meaning.
and one meaning only, directed to al1States 31embers of the Assembly
of IMCO.
Kegarding Question z (b), the word "owning" has the meaning that
the shipsbeloi~gto the State, in the sense that the ships are registered
under the Iaws of that State and are therefore subject toits laws, par-
ticularly the power of the State to impose maritime safety regulations
upon them. The criterion which determines whether a State owns any
given amount of sliipping for the purpose of Article zS(a) is the quantity
of tonnage ofsliipping registered under the Iaws of that State.
1thank you. 18. REPLY OF Mr. RIPHAGEN

(REPRESENTIX GHE GOVERNMENT OF THE NBTHERLANDS!
AT THE PUBLIC HEARING OF 4 MAY 1960, APTERNOON

Mr. President and Members of the Court.

The reply to the qiiestion that was put by Judge Sir Percy Spender
would really require some elaboration. 1 will, however, try to summarize
my point in as few words as possible.
In my submission, Article 28 of the IMCO Convention lays down a
directive addressed tothe Assembly. This directive is couched in general
terrns. Al1 Menibers of the Maritime Safety Cornmittee should have an
important interest in maritime safety. Now, such interest may depend

on various circumstances and may exist from various points of view.
Consequently, Article 28 (a) embodies a further directive which envisages
a balanced representation of those various points of view. Accordingly,
at least eight of the fourteen seats of thc Maritime Safety Committee
should be taken bv those Governments whose imuortant interest in
~ii:~riiir~:tf<tv ij ]xi~ii:,riIyl>,Ll11 111t.i;~cti!.itiin rc;Ik,1 01 31111~-
1,iiig;+.<ii,.'l'l~six urlicr sc.;,t, ~l1I1::~llott<10 5r.i~~~\vIiujtiiliiur-
r:int iritr%rriiiiiiaririnic .;.,lcty 1is.îiiiiiit1.vi.ir1.ftlicir i>r~\.idiny:
crews and passengers. There are obviouslymore than eight, or &en more
than fourteen, States which have an important interest in maritime
safety based on tbeir activities in respect tu shipping as such. The choice

between these States should, according to Article 28, be made in such a
way that the largest ship-owning nations are represented. h'ow it is
submitted, Mr. President and hlembers of the Court, that the Assembly
in making this choice rnay take into consideration every factor which it
can reasonably and in good faith connect with the purpose of IMCO and
of the Maritime Safety Committee. This implies, of course, that the
method of choice is a~olicabie to al1members of IMCO. There is. how-

with the type of qualification,such as, in another context, the qualifi-
cation of "peace-loving nation". which does not lend itself to mathcma-

tical computation. Surely, the Assembly can, in making its choice, take
into account, and indeed start from, the number of gross registered
tonnage. Rut there are also other factors which have a role to play
and. in this connection. 1 mav underline once more that we are not

-
thé election of an international organ.
1have already tried to explain that mere registration is not, in itself,
significant from the point of view of the composition of the Maritime
Safety Committee. It does, in itself, not mean anything for the activities
of the State in which ships are registered in respect of these ships.
In our submission, Mr. President and Members of the Court, for the

purpose of the present request for an Advisory Opinion, it might be
sufficient to mention this point. 1have understood that neither Liberia440 REPLY OF MR. RIPHAGEX (KETHERLAXDS)- 4'60
nor I'anama, nor, for that matter, the United States contends that
Liberia and Panama should have been elected on the basis of any other
test than that of registered tonnage. Mr. President and Members of the

Court, 1 may respectliilly submit that the qualification "the largest
sliip-owning nations" iii a context ol a directive such as that of Article
28 (cc)cannot, rvithout losing its comprehensiire meanjng, be analysed
by taking each word or part of a word separately. 1 may therefore he
allowed to reply to the questions put ta the Representatives by Sir
Percy Spender in the general way 1 have now done.
1thank you, Mr. President.
The PRESIDEST:1 assume that the Representative of the United
Kingdom has already given an answer to the qiiestions put by the two
Members of the Court. The Representatives have now completed their
preseiitatioii., therelore, declare the hearing closed.
The Coiirtis closed.