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asia-pacific journal of ocean law and policy
2 (2017) 201-246
brill.com/apoc
The Relationship between unclos
and imo Instruments
Robert Beckman
Head, Ocean Law & Policy Programme, Centre for International Law
cilbeckman@nus.edu.sg
Zhen Sun
Research Fellow, Centre for International Law
cilsz@nus.edu.sg
Abstract
The 1982 United Nations Convention on the Law of the Sea (unclos) is widely viewed
as a “constitutive” instrument that provides a legal framework that is being filled in,
rounded out and complemented by existing and subsequently enacted international
agreements and customary international law. The International Maritime Organiza-
tion (imo) is the preeminent international organization with competence to establish
international rules and standards for the safety, security and environmental perfor-
mance of international shipping. In other words, on matters relating to international
shipping, unclos outlines the rights and obligations of States parties in various mari-
time zones that must be exercised and fulfilled through implementation instruments
under the auspices of imo.
This article will examine and discuss the relationship between unclos and imo
instruments. First, it will provide an overview of imo, including its historical back-
ground, its mandates and structure, and the major instruments that are under its aus-
pices. It will then look at the relationship between unclos and imo, and discuss how
imo and its instruments have been incorporated into unclos. Furthermore, it will
discuss the role of imo and its instruments in assisting States to exercise their rights
and fulfil their obligations under unclos.
Keywords
UNCLOS – IMO – shipping – port state control – SOLAS – MARPOL – flag state –
tacit acceptance procedure
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i The International Maritime Organization
1 Historical Background of imo
Shipping is one of the oldest modes of international commerce. The regulation
of international shipping began by individual governments and private
maritime organizations. The idea of establishing an inter-governmental orga-
nization dedicated to shipping and other maritime matters did not arise until
after the Second World War.1 At the 1948 United Nations Maritime Conference
(1948 Conference) convened at the request of the United Nations Economic
and Social Council (ecosoc), it was decided that a permanent international
organization governing international shipping should be established.2 The
1948 Conference adopted the Convention on the Inter-Governmental Maritime
Consultative Organization (1948 Convention, now known as the imo Conven-
tion), and established the Inter-Governmental Maritime Consultative Organi-
zation (imco) to promote maritime safety and facilitate cooperation among
governments in the field of international shipping.3 On 18 November 1948, the
imco was accorded the status of a specialised agency under the Charter of
the United Nations (the un Charter), and hence became part of the United
Nations system.4 Ten years passed before the 1948 Convention entered into
force in 1958. The imco became operational in 1959, while the First United
Nations Conference on the Law of the Sea (First Conference) was in progress
in Geneva.5 In 1975, by imco Resolution A.358(ix), the name of the imco, and
1 Aldo Chircop, ‘The International Maritime Organization’, in Donald R. Rothwell, Alex
G. Oude Elferink, and Karen N. Scott (ed), The Oxford Handbook of the Law of the Sea (Oxford,
2015), 417.
2 United Nations, Report of the Economic and Social Council to the General Assembly: cover-
ing the period from 18 August 1947 to 29 August 1948, General Assembly Official Records:
Third Session, Supplement No. 3(A/625), Section xv. The United Nations Maritime Confer-
ence, 30–31, http://repository.un.org/handle/11176/271633 (All web links were accessed on 12
July 2017).
3 International Maritime Organization (imo), Brief History of imo, http://www.imo.org/en/
About/HistoryOfIMO/Pages/Default.aspx.
4 United Nations General Assembly Resolution A/res/204(iii), 18 November 1948, ‘Agree-
ment between the United Nations and the Inter-Governmental Maritime Consultative Or-
ganization’, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/204(III). C harter
of the United Nations, Articles 57 and 63, http://www.un.org/en/sections/un-charter/
un-charter-full-text/.
5 Convention on the International Maritime Organization (imo Convention) (as subsequently
amended), Geneva, 6 March 1948, entry into force 17 March 1958, https://treaties.un.org/
pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XII-1&chapter=12&clang=_en.
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correspondingly the title of the 1948 Convention, was changed to the “Interna-
tional Maritime Organization (imo)” with effect from 1982.6
The quintessential purpose of imo is as set out in the imo Convention as
follows:
To provide machinery for co-operation among Governments in the field
of governmental regulation and practices relating to technical m atters
of all kinds affecting shipping engaged in international trade, and to
encourage the general adoption of the highest practicable standards
in matters concerning maritime safety, efficiency of navigation and
prevention and control of marine pollution from ships; and to deal with
administrative and legal matters related to the purposes set out in this
Article.7
It was envisioned that imo would have the mandate to provide governments a
forum to set global rules and standards for the navigational and environmental
performance of international shipping. The scope of the two main pillars of
safety and environment have been expanding as new problems emerge. imo
now deals with issues such as the maritime security concerns over piracy and
other acts of violence against shipping, the impact of shipping on the marine
environment, the member State audit scheme, and port State control regimes.8
Hence, the main role of imo has evolved from performing only technical and
operational functions to establishing a comprehensive international regula-
tory framework for the shipping industry that is fair and effective, universally
adopted and implemented.9
In order to achieve the mandate as a global standard-setting authority for in-
ternational shipping, imo is to provide for “the drafting of conventions, agree-
ments, or other suitable instruments, and recommend these to G overnments
and to intergovernmental organizations, and convene such conferences as
6 imco Resolution A.358(ix), adopted 14 November 1975, Amendments to the imco Conven-
tion. For access to the imo official reports and documents, consult Index of imo Resolutions
(http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Pages/Default.aspx),
from 2000 to present, please consult imodocs (https://webaccounts.imo.org).
7 imo Convention, supra note 5, Article 1(a).
8 imo What It Is, 2013, http://www.imo.org/en/About/Documents/What%20it%20is%20
Oct%202013_Web.pdf.
9 Chircop (2015), supra note 1 at 419–420. imo, Introduction to imo, http://www.imo.org/en/
About/Pages/Default.aspx.
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may be necessary”, and to provide “machinery for consultation among Mem-
bers and the exchange of information among Governments”.10 These roles
suggest that although imo functions as a legislative authority, the decision to
adopt international instruments and the power to implement them remains
with the Member States who are using the governance structure of imo as a
facilitator.
2 Structure of imo
The imo governance structure consists of an Assembly, a Council and five
main technical committees: the Maritime Safety Committee (msc), the Marine
Environment Protection Committee (mepc), the Legal Committee (leg),
the Technical Cooperation Committee (tcc) and the Facilitation Com-
mittee (fal), with a number of Sub-Committees supporting the work of
the main technical committees.11 The Secretariat of imo consists of the
Secretary-General, the chief administrative officer, and some 300 international
personnel based at the headquarters in London.12 The entire governance
structure has been progressively institutionalised by amendments to the imo
Convention.
The Assembly consists of representatives from all Member States and is the
highest governing body of imo.13 It meets once every two years under normal
circumstances and is the plenary forum for all Members to make decisions on
matters within the mandate of imo. This includes decisions to approve all rec-
ommendations, to vote for the budget to which all Member States contribute
on an agreed scale of assessments, to determine the financial arrangement and
review the expenditures of imo, to elect the Members to be represented on
the Council, and to approve the appointment of the Secretary-General.14 Most
10 imo Convention, supra note 5, Article 2(b)–(c).
11 imo Convention, supra note 5, Article 11. imo, Structure of imo, the msc and mepc are
assisted in their work by a number of sub-committees which are also open to all Mem-
ber States: Sub-Committee on Human Element, Training and Watchkeeping (htw); Sub-
Committee on Implementation of imo Instruments (iii); Sub-Committee on Navigation,
Communications and Search and Rescue (ncsr); Sub-Committee on Pollution Preven-
tion and Response (ppr); Sub-Committee on Ship Design and Construction (sdc); Sub-
Committee on Ship Systems and Equipment (sse); and Sub-Committee on Carriage of
Cargoes and Containers (ccc), http://www.imo.org/en/About/Pages/Structure.aspx.
12 imo, Structure of imo, supra note 11.
13 imo Convention, supra note 5, Article 12.
14 imo Convention, supra note 5, Articles 15, 16 and 22.
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importantly, the Assembly may recommend to “Members for adoption regu-
lations and guidelines concerning maritime safety, the prevention and con-
trol of marine pollution from ships and other matters concerning the effect of
shipping on the marine environment assigned to the Organization by or under
international instruments, or amendments to such regulations and guidelines
which have been referred to it”.15
Between the regular sessions of the Assembly, a Council composed of 40
Members elected by the Assembly performs all the functions of the Assembly
except making recommendations to Member States on maritime safety and
pollution prevention, as that is reserved for the Assembly.16 The Council co-
ordinates the work of the various committees and organs, considers matters
within their work scope and transmits its own comments and recommenda-
tions to the Assembly.
The composition of the Council is a weighted balance among States with the
interest in providing international shipping services, States with the interest
in international seaborne trade, and States with special interests in maritime
transport or navigation.17 The original balance in the composition of the Coun-
cil was challenged by the emergence of numerous new States and the increas-
ingly diverse international community.18 In response, imo enlarged the Council
to ensure the representation of different interests among Member States.19 In
electing the Members of the Council, the Assembly shall observe the following
criteria: a) ten shall be States with the largest interest in providing international
shipping services; b) ten shall be other States with the largest i nterest in inter-
national seaborne trade; and c) 20 shall be other States that have special inter-
ests in maritime transport or navigation, and whose election to the Council
will ensure the representation of all major geographic areas of the world.20
15 imo Convention, supra note 5, Article 15(j).
16 imo Convention, supra note 5, Articles 16, 21 and 26. The number of Council Members
have been expanded from the original 16 as adopted in 1948, to 24 in 1974, to 32 in 1979,
and to 40 in 1993.
17 imo Convention, supra note 5, Article 17.
18 Chircop (2015), supra note 1 at 422–423.
19 imo Resolution A.735(18), adopted 4 November 1993, Amendments to the Convention on
the International Maritime Organization, Articles 16–17 and 19(b).
20 imo Convention, supra note 5, Article 17. imo, Structure of imo, supra note 11. Council
Members for the 2016–2017 biennium are Category (a): China, Greece, Italy, Japan, Nor-
way, Panama, Republic of Korea, Russian Federation, United Kingdom, United States. Cat-
egory (b): Argentina, Bangladesh, Brazil, Canada, France, Germany, India, Netherlands,
Spain, Sweden. Category (c): Australia, Bahamas, Belgium, Chile, Cyprus, Denmark,
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Elected Members hold office until the end of the next regular session of the
Assembly, and Members are eligible for re-election.21 The Council may meet
upon one month’s notice as often as may be necessary for the efficient dis-
charge of its duties upon the summons of its Chairman or upon request by
not less than four of its Members.22 The Council reports to the Assembly at its
regular session on the work performance of imo.23
The msc was the first high technical body established by the imo Conven-
tion. Its mandate is to:
consider any matter within the scope of the Organization concerned
with aids to navigation, construction and equipment of vessels, manning
from a safety standpoint, rules for the prevention of collisions, handling
of dangerous cargoes, maritime safety procedures and requirements, hy-
drographic information, log-books and navigational records, marine ca-
sualty investigation, salvage and rescue, and any other matters directly
affecting maritime safety.24
To carry out such functions, the msc submits to the Council proposed safe-
ty regulations, amendments to safety regulations, recommendations and
guidelines.25
Historically, the composition of the msc was a controversial matter. The
original provision in the 1948 Convention established the msc as a body
consisting of 14 Member States including “not less than eight largest ship-
owning nations”.26 The first election of the members of the msc by the
Egypt, Indonesia, Kenya, Liberia, Malaysia, Malta, Mexico, Morocco, Peru, Philippines,
Singapore, South Africa, Thailand, Turkey.
21 imo Convention, supra note 5, Article 18.
22 imo Convention, supra note 5, Article 19(c).
23 imo Convention, supra note 5, Article 23.
24 imo Convention, supra note 5, Article 28(a).
25 imo Convention, supra note 5, Article 29(a)–(b).
26 1948 Convention, Article 28 “The Maritime Safety Committee shall consist of fourteen
Members elected by the Assembly from, the Members, governments of those nations hav-
ing an important interest in maritime safety, of which not less than eight shall be the
largest ship-owning nations, and the remainder shall be elected so as to ensure adequate
representation of Members, governments of other nations with an important interest in
maritime safety, such as nations interested in the supply of large numbers of crews or in
the carriage of large numbers of berthed and unberthed passengers, and of major geo-
graphical areas.” https://treaties.un.org/doc/Treaties/1958/03/19580317%2005-05%20PM/
Ch_XII_1p.pdf.
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ssembly excluded both Liberia and Panama, two “open registry” flag States,
A
despite the fact that both States were among the top eight largest flag States
according to Lloyd’s Register of Shipping Statistical tables 1958.27 The election
gave rise to a d ispute concerning the interpretation of the composition provi-
sion that was s ubmitted by an Assembly Resolution in 1959 to the International
Court of Justice (icj) for an Advisory Opinion.28 The Advisory Opinion was
strictly limited to an interpretation of the 1948 Convention and it advised that
the term “ship-owning nations” refers solely to registered tonnage.29 The icj
skilfully managed to avoid any direct pronouncement on flags of convenience
and genuine link.30 The issue of the composition of the msc was subsequently
resolved by an agreement that all Members of imo could become members of
any of the committees.31
The mepc was established as an equivalent body to the msc with a man-
date to consider any matter within the scope of imo concerned with the pre-
vention and control of marine pollution from ships.32 It was first established
as a subsidiary body of the Assembly in 1973 to coordinate the work of imo
in addressing issues of ship-source pollution, and was upgraded and consti-
tuted as one of the main organs in 1985.33 The mepc submits to the Council
proposed regulations for the prevention and control of marine pollution from
27 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization (Constitution of the msc), Advisory Opinion of 8 June 1960:
i.c.j. Reports 1960, p. 150.
28 Ibid, Request for Advisory Opinion, 25 March 1959.
29 Ibid, at pp. 170–171.
30 R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd edition, Manchester University
Press, 1999), 257–263. Convention on the High Seas, Geneva, 29 April 1958, entry into force
30 September 1962, Article 5. States have the right to fix the conditions for the grant of
its nationality to ships, but ‘there must exist a genuine link between the State and the
ship; in particular, the State must effectively exercise its jurisdiction and control in ad-
ministrative, technical and social matters over ships flying its flag.’ There are no objective
criteria for determining the existence of a genuine link, and State practice have not been
consistent. States that permit foreign shipowners having no real connection with them to
register their ships under the flags of those States are known as “flag of convenience” or
“open registry” States.
31 Amendments to Articles 10, 16, 17, 18, 20, 28, 31 and 32 of the Convention on the Inter-
national Maritime Organization, London, 17 October 1974, https://treaties.un.org/doc/
Treaties/1978/04/19780401%2005-29%20PM/Ch_XII_1_cp.pdf.
32 imo Convention, supra note 5, Article 38.
33 imo, Structure of imo, supra note 11. Kenneth R. Simmonds, The International Maritime
Organization (Simmonds & Hill, 1994), 32.
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ships, amendments to such regulations, and recommendations and guidelines
it has developed.34 The mepc consists of all the Members of imo and meets
at least once a year.35 The mepc considers most of the work of imo relating to
the protection of the marine environment except the treaties on liability and
compensation that are addressed by the leg.36
The leg was established in the wake of the Torrey Canyon casualty in 1967
in order to deal with the legal questions that arose from that disaster. It was
later empowered to consider any legal matters within the scope of imo and to
prepare drafts of international conventions and subsequent amendments to
such conventions.37 The leg has developed into a principal committee that
tackles a variety of maritime law subjects under the auspices of imo and its
work has complemented the work of the msc and mepc. The Conventions
developed by the leg include the liability and compensation regimes for oil
pollution and in connection with the carriage of hazardous and noxious sub-
stances by sea, terrorism, salvage, wreck removal, passengers and their luggage,
and the welfare of seafarers.38
Two more committees, the tcc and the fal, were established first as sub-
sidiary bodies of the Council then institutionalised by amendments to the imo
Convention as the work of imo progressed.39 The tcc was formally institu-
tionalised in 1984 to consider any matter within the scope of imo concerned
with the implementation of technical cooperation projects funded by the rel-
evant United Nations programme or by the voluntary trust fund programme,
and other related activities in the field of technical cooperation.40 The fal
34 imo Convention, supra note 5, Article 39.
35 imo Convention, supra note 5, Articles 37 and 40.
36 Alfred Popp, ‘The Treaty-Making Work of the Legal Committee of the International
Maritime Organization’, in Aldo Chircop, Norman Letalik, Ted L. McDorman and Susan
Rolston (ed), The Regulation of International Shipping: International and Comparative Per-
spectives Essays in Honor of Edgar Gold (Brill, 2012), 207–225.
37 imo Convention, supra note 5, Articles 33–34. imo, Structure of imo, supra note 11.
38 Popp (2012), supra note 36, at 210–223. Rosalie P. Balkin, ‘The Establishment and Work
of the imo Legal Committee’, in Myron H. Nordquist and John Norton Moore (ed), Cur-
rent Maritime Issues and the International Maritime Organization (Martinus Nijhoff, 1999),
291–307, at 302–305.
39 imo, Structure of imo, supra note 11.
40 imo Convention, supra note 5, Article 43. Amendments to the Convention on the Inter-
national Maritime Organization relating to the institutionalisation of the Committee on
Technical Co-operation in the Convention, London, 17 November 1977, https://treaties
.un.org/doc/Treaties/1984/11/19841110%2005-25%20PM/Ch_XII_1_ep.pdf.
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was formally institutionalised in 2008 to consider any matter within the scope
of imo concerned with the facilitation of international maritime traffic, par-
ticularly with respect to the adoption and amendment of measures or other
provisions of the 1965 Convention on Facilitation of International Maritime
Traffic.41 Both tcc and fal consist of all Members of imo, meet at least once a
year, and submit recommendations and report on their work to the Council.42
Since its adoption, the imo Convention has been amended no less than
seven times. After the reconstitution of the msc, the expansion of the Council
and the establishment of a number of Committees and Sub-Committees, imo
is no longer merely an inter-governmental consultative organization, but a
fully operational international organization on a par with other similar organi-
zations with global functions. As of July 2017, imo, with its seat in London, has
172 Member States and three Associate Members.43 In addition, many interna-
tional organizations contribute substantially to the work of imo, by providing
substantial technical and other expertise. imo has awarded Observer Status to
64 Inter-Governmental Organizations (igos) that have concluded agreements
of cooperation with imo,44 and Consultative Status to 79 Non-Governmental
Organizations (ngos).45
41 Amendments to the Convention on the International Maritime Organization (institu-
tionalisation of the Facilitation Committee), London, 7 November 1991, https://treaties
.un.org/doc/Treaties/1998/09/19980901%2005-38%20PM/Ch_XII_1_gp.pdf.
42 imo Convention, supra note 5, Articles 42, 44–45, 47, and 49–50.
43 imo, Member States, igos and ngos, http://www.imo.org/en/About/Membership/
Pages/Default.aspx. imo Convention, supra note 5, Article 8 ‘Any Territory or group of
Territories to which the Convention has been made applicable under Article 72, by the
Member having responsibility for its international relations or by the United Nations,
may become an Associate Member of the Organization by notification in writing given
by such Member or by the United Nations, as the case may be, to the Secretary-General of
the United Nations.’ and Article 9 ‘An Associate Member shall have the rights and obliga-
tions of a Member under the Convention except that it shall not have the right to vote or
be eligible for membership on the Council and subject to this the word «Member» in the
Convention shall be deemed to include Associate Member unless the context otherwise
requires.’
44 imo, Intergovernmental Organizations which have concluded agreements of coopera-
tion with imo, http://www.imo.org/en/About/Membership/Pages/IGOsWithObserver
Status.aspx.
45 imo, Non-Governmental International Organizations which have been granted consulta-
tive status with imo, http://www.imo.org/en/About/Membership/Pages/NGOsInConsul
tativeStatus.aspx.
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Maritime industries also have contributed to the work of imo. Some of
the guidelines and practices developed by maritime industries are absorbed
into imo instruments. For example, the International Maritime Dangerous
Goods Code (imdg Code) essentially consists of industry practice that has
been formalised as mandatory regulations under the umbrella of the Interna-
tional Convention for the Safety of Life at Sea (solas), and the Unified Re-
quirements Concerning Polar Class adopted by the International Association
of Classification Societies (iacs) have been incorporated into the mandatory
imo Polar Code through direct reference.46 Nonetheless, essentially, all deci-
sions to adopt and implement any rules and regulations rest with the official
Member States of imo.
3 Key imo Instruments
The harmonisation of rules for international shipping, mainly relating to the
safety of navigation, started before the establishment of imo. Since it came
into existence in 1959, imo has been amending the existing rules and regula-
tions to keep them up to date, and has developed and adopted a large number
of new conventions, protocols, guidelines and recommendations to address
issues within its mandate.47 It is important to note that, the main l egally bind-
ing conventions are often supplemented by numerous non-binding guidelines,
recommendations and codes. In some cases, these non-binding instruments
may be made legally binding by being incorporated into relevant conventions.48
46 Chircop (2015), supra note 1 at 426–427. imo, The International Maritime Dangerous
Goods (imdg) Code, http://www.imo.org/en/OurWork/Safety/Cargoes/Dangerous-
Goods/Pages/default.aspx. imo, mepc 68/21/Add.1, Annex 10, Annex International Code
for Ships Operating in Polar Waters (Polar Code), Part i-A, para. 1.2.10, http://www.imo
.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20
AS%20ADOPTED.pdf.
47 imo, Conventions: Introduction, http://www.imo.org/en/About/Conventions/Pages/Ho
me.aspx. Comprehensive List of All imo Treaties, http://www.imo.org/en/About/Con
ventions/ListOfConventions/Documents/Convention%20titles%202016.pdf.
48 Examples are the amendments that made the International Code for the Construction
and Equipment of Ships Carrying Dangerous Chemicals in Bulk (the ibc Code) and the
Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in
Bulk (bch Code) mandatory under both marpol and solas. Thomas A. Mensah, ‘Pre-
vention of Marine Pollution: The Contribution of imo’, in Jürgen Basedow and Ulrich
Magnus (ed), Pollution of the Sea – Prevention and Compensation (Springer, 2007), 41–61,
at 48.
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The five main committees are the main bodies concerned with the adop-
tion and implementation of instruments under their respective mandate.
Member States may raise, discuss and debate on any issues relating to interna-
tional shipping at the meetings to adopt new instruments or amend existing
instruments. The decisions will be transmitted to the Council and the Assem-
bly, and the latter can make recommendations to the Member States to adopt
and implement adopted instruments. Each adopted convention will come into
force after a certain number of Member States, often with a minimum tonnage
requirement, ratify or accede to the convention. In general, the main interna-
tional conventions that have been adopted under the auspices of imo could be
divided into three categories.
The first category of conventions relates to the safety and security of naviga-
tion. For this category, imo has progressively developed rules on promoting
the safety of life at sea that had been negotiated since the 1920s. This resulted
in the adoption of the 1974/1978 International Convention for the Safety of
Life at Sea (solas), which is amended and updated on a continual basis.49
Other major conventions on maritime safety are the International Convention
on Load Lines, 1966 (Load Lines),50 the International Convention on Tonnage
Measurement of Ships, 1969 (Tonnage Convention),51 the Convention on the
International Regulation for Preventing Collisions at Sea, 1972 (colreg),52
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers, 1978 (stcw),53 the International Convention on
49 Simmonds (1994), supra note 33, at 15–16. imo, International Convention for the Safety of
Life at Sea (solas), 1974, adopted 1 November 1974, entry into force 25 March 1980, http://
www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Conven
tion-for-the-Safety-of-Life-at-Sea-%28SOLAS%29%2c-1974.aspx.
50 imo, International Convention on Load Lines (ll), adopted 5 April 1966, entry into force
21 July 1968, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Inter
national-Convention-on-Load-Lines.aspx.
51 imo, International Convention on Tonnage Measurement of Ships (Tonnage), adopted
23 June 1969, entry into force 18 July 1982, http://www.imo.org/en/About/Conventions/
ListOfConventions/Pages/International-Convention-on-Tonnage-Measurement-of
-Ships.aspx.
52 imo, Convention on the International Regulations for Preventing Collisions at Sea, 1972
(colregs), adopted 20 October 1972, entry into force 15 July 1977, http://www.imo.org/
en/About/Conventions/ListOfConventions/Pages/COLREG.aspx.
53 imo, International Convention on Standards of Training, Certification and Watchkeeping
for Seafarers (stcw), adopted 7 July 1978, entry into force 28 April 1984, major revisions
in 1995 and 2010, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/
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Maritime Search and Rescue, 1979 (sar),54 the Torremolinos International
Convention for the Safety of Fishing Vessels, 1977 (sfv),55 and the Internation-
al Convention on Standards of Training, Certification and Watchkeeping for
Fishing Vessels, 1995 (stcw-f).56
Driven by increasing concerns about the security of international shipping,
imo has expanded its mandate to include issues of maritime security.57 In a
conference under the auspices of imo in 1988, the Convention for the Suppres-
sion of Unlawful Acts against the Safety of Maritime Navigation (sua Conven-
tion) was adopted along with the 1988 Protocol for the Suppression of U nlawful
Acts against the Safety of Fixed Platforms Located on the Continental Shelf
(sua Protocol).58 The main purpose of the Convention and the Protocol is to
ensure that appropriate action is taken against persons committing unlawful
acts against ships and fixed platforms. Both the sua Convention and the sua
Protocol have been supplemented by a Protocol in 2005. In addition, a new
International-Convention-on-Standards-of-Training%2c-Certification-and-Watchkeep
ing-for-Seafarers-%28STCW%29.aspx.
54 imo, International Convention on Maritime Search and Rescue (sar), adopted 27
April 1979, entry into force 22 June 1985, http://www.imo.org/en/About/Conventions/
ListOfConventions/Pages/International-Convention-on-Maritime-Search-and-Rescue
-%28SAR%29.aspx.
55 imo, The Torremolinos International Convention for the Safety of Fishing Vessels (sfv),
adopted 2 April 1977; superseded by the 1993 Torremolinos Protocol; Cape Town Agree-
ment of 2012 on the Implementation of the Provisions of the 1993 Protocol relating to the
Torremolinos International Convention for the Safety of Fishing Vessels, http://www.imo
.org/en/About/Conventions/ListOfConventions/Pages/The-Torremolinos-International
-Convention-for-the-Safety-of-Fishing-Vessels.aspx.
56 imo, International Convention on Standards of Training, Certification and Watchkeeping
for Fishing Vessel Personnel (stcw-f), adopted 7 July 1995, entry into force 29 September
2012, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Internation
al-Convention-on-Standards-of-Training%2c-Certification-and-Watchkeeping-for-Fish
ing-Vessel-Personnel-.aspx.
57 imo, imo and Maritime Security Historic Background, http://www.imo.org/en/OurWork/
Security/Guide_to_Maritime_Security/Documents/IMO%20and%20Maritime%20Secu
rity%20-%20Historic%20Background.pdf.
58 imo, Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf (sua Convention and sua Protocol), adopted
10 March 1988, entry into force 1 March 1992; 2005 Protocols: adopted 14 October 2005,
entry into force 28 July 2010, http://www.imo.org/en/About/Conventions/ListOfConven
tions/Pages/SUA-Treaties.aspx.
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chapter was adopted under solas to make mandatory the International Ship
and Port Facility Security (isps) Code, whose aim is to ensure that the appli-
cable ocean-going ships and port facilities of imo Member States are imple-
menting the highest possible standards of security.59
The second category of imo Conventions relates to the prevention, reduc-
tion and control of marine pollution. The most important imo convention
on ship-source pollution is the 1973 International Convention for the Preven-
tion of Pollution from Ships, as modified and amended (marpol 73/78).60
m arpol has six Annexes, among which Annex i on oil and Annex ii on
noxious liquid substances in bulk are mandatory while the other four are
optional.61 Other conventions in this field are the International Convention
Relating to Intervention on the High Seas in Cases of Oil Pollution Causali-
ties, 1969 (intervention),62 the International Convention on Oil Pollution
Preparedness, Response and Cooperation, 1990 (oprc),63 and the Protocol on
Preparedness, Response and Co-operation to pollution Incidents by Hazardous
59 imo, solas xi-2 and the isps Code, http://www.imo.org/en/OurWork/Security/Guide
_to_Maritime_Security/Pages/SOLAS-XI-2%20ISPS%20Code.aspx.
60 imo, International Convention for the Prevention of Pollution from Ships (marpol),
adopted 1973 (Convention), 1978 (1978 Protocol), 1997 (Protocol – Annex vi), entry into
force 2 October 1983 (Annexes i and ii), http://www.imo.org/en/About/Conventions/
ListOfConventions/Pages/International-Convention-for-the-Prevention-of-Pollution
-from-Ships-%28MARPOL%29.aspx.
61 Ibid, Annex i Regulations for the Prevention of Pollution by Oil (entered into force 2 Octo-
ber 1983); Annex ii Regulations for the Control of Pollution by Noxious Liquid Substances
in Bulk (entered into force 2 October 1983); Annex iii Prevention of Pollution by Harmful
Substances Carried by Sea in Packaged Form (entered into force 1 July 1992); Annex iv
Prevention of Pollution by Sewage from Ships (entered into force 27 September 2003);
Annex v Prevention of Pollution by Garbage from Ships (entered into force 31 December
1988); and Annex vi Prevention of Air Pollution from Ships (entered into force 19 May
2005).
62 imo, International Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties, 1969 (intervention), adopted 29 November 1969, entry into
force 6 May 1975, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/
International-Convention-Relating-to-Intervention-on-the-High-Seas-in-Cases-of-Oil
-Pollution-Casualties.aspx.
63 imo, International Convention on Oil Pollution Preparedness, Response and Co-
operation (oprc), adopted 30 November 1990, entry into force 13 May 1995, http://www
.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention
-on-Oil-Pollution-Preparedness%2c-Response-and-Co-operation-%28OPRC%29.aspx.
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and Noxious Substances, 2000 (oprc-hns Protocol).64 In addition, two further
specialised instruments deal with technical aspects relate to the environmen-
tal impact from shipping: International Convention on the Control of Harmful
Anti-fouling Systems on Ships, 2001 (afs),65 and the International Convention
for the Control and Management of Ships’ Ballast Water and Sediments, 2004
(bwm).66
The third category of imo Conventions relates to liability and compensation
regimes that strengthen the conventions on marine pollution. C onventions
in this category include the 1969 International Convention on Civil Liability
for Oil Pollution Damage, (‘clc’ as modified ‘clc 1992’),67 and the 1971 In-
ternational Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage (‘fund’, as modified ‘fund 1992’),68
and the protocols to these conventions. Other relevant conventions are the
International Convention on Liability and Compensation for Damage in Con-
nection with the Carriage of Hazardous and Noxious Substances by Sea, 1996
64 imo, Protocol on Preparedness, Response and Co-operation to pollution Incidents by
Hazardous and Noxious Substances, 2000 (oprc-hns Protocol), adopted 15 March 2000,
entry into force 14 June 2007, http://www.imo.org/en/About/Conventions/ListOfConven
tions/Pages/Protocol-on-Preparedness%2c-Response-and-Co-operation-to-pollution
-Incidents-by-Hazardous-and-Noxious-Substances-%28OPRC-HNS-Pr.aspx.
65 imo, International Convention on the Control of Harmful Anti-fouling Systems on Ships
(afs), adopted 5 October 2001, entry into force 17 September 2008, http://www.imo.org/
en/About/Conventions/ListOfConventions/Pages/International-Convention-on-the
-Control-of-Harmful-Anti-fouling-Systems-on-Ships-%28AFS%29.aspx.
66 imo, International Convention for the Control and Management of Ships’ Ballast Wa-
ter and Sediments (bwm), adopted 13 February 2004, entry into force 8 September 2017,
http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International
-Convention-for-the-Control-and-Management-of-Ships%27-Ballast-Water-and-Sedi
ments-%28BWM%29.aspx.
67 imo, International Convention on Civil Liability for Oil Pollution Damage (clc), adopted
29 November 1969, entry into force 19 June 1975; being replaced by 1992 Protocol: adopted:
27 November 1992, entry into force 30 May 1996, http://www.imo.org/en/About/Conven
tions/ListOfConventions/Pages/International-Convention-on-Civil-Liability-for-Oil-Pol
lution-Damage-%28CLC%29.aspx.
68 imo, International Convention on the Establishment of an International Fund for Com-
pensation for Oil Pollution Damage (fund), adopted 18 December 1971, entry into force
16 October 1978; superseded by 1992 Protocol: adopted 27 November 1992, entry into force
30 May 1996, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/
International-Convention-on-the-Establishment-of-an-International-Fund-for-Compen
sation-for-Oil-Pollution-Damage-%28FUND%29.aspx.
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(hns), and its 2010 Protocol;69 the International Convention on Civil Liability
for Bunker Oil Pollution Damage, 2001 (bunker);70 the Convention relating
to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971
(nuclear);71 and the Convention on Limitation of Liability for Maritime
Claims, 1976 (llmc).72
In the early years of imo, it amended its conventions in the traditional way.
When adopting amendments, it was required that a certain percentage of con-
tracting States, usually two-thirds, had to ratify the amendments before they
came into force. This procedure proved inadequate to respond to new challeng-
es presented by the development of technology and techniques in the shipping
industry and by the increasing number of States Parties to these international
conventions in the 1960s and 1970s. As a result, many amendments to conven-
tions that were adopted during the 1960s and the early 1970s failed to enter
into force due to lack of ratification. To address this problem, imo adopted an
alternative system for amending existing conventions, known as the “tacit ac-
ceptance procedure”.73 Under this procedure, technical details are placed in an-
nexes to the convention rather than in the main text, and the annexes can be
amended through the “tacit acceptance procedure”. An amendment to a tech-
nical annex enters into force on a specified date as agreed when it was adopted,
69 imo, International Convention on Liability and Compensation for Damage in Connec-
tion with the Carriage of Hazardous and Noxious Substances by Sea (hns), adopted 3
May 1996, not in force; superseded by 2010 Protocol: adopted 30 April 2010, not yet in force,
http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International
-Convention-on-Liability-and-Compensation-for-Damage-in-Connection-with-the-Car
riage-of-Hazardous-and-Noxious-.aspx.
70 imo, International Convention on Civil Liability for Bunker Oil Pollution Damage
(bunker), adopted 23 March 2001, entry into force 21 November 2008, http://www.imo
.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-on
-Civil-Liability-for-Bunker-Oil-Pollution-Damage-%28BUNKER%29.aspx.
71 imo, Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear
Material (nuclear), adopted 17 December 1971, entry into force 15 July 1975, http://www
.imo.org/en/About/Conventions/ListOfConventions/Pages/Convention-relating-to-Civil
-Liability-in-the-Field-of-Maritime-Carriage-of-Nuclear-Material-%28NUCLEAR%29
.aspx.
72 imo, Convention on Limitation of Liability for Maritime Claims (llmc), adopted 19
November 1976, entry into force 1 December 1986; Protocol of 1996: adopted 2 May 1996,
entry into force 13 May 2004, http://www.imo.org/en/About/Conventions/ListOfConven
tions/Pages/Convention-on-Limitation-of-Liability-for-Maritime-Claims-%28LLMC%29
.aspx.
73 Mensah, supra note 48, at 58–59.
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unless it is rejected by a specified number of contracting States before such date.
The number of contracting States required to reject an amendment is usually
more than one-third. Alternatively, the amendment could provide that it enters
into force on the given date unless by that certain date, it is rejected by States
whose merchant fleets represent at least fifty percent of the world merchant
tonnage.74 The tacit a cceptance p rocedure is generally limited to technical
provisions in the annexes whose details are less controversial. The tacit accep-
tance procedure now applies to the annexes in most of the major imo conven-
tions, including colreg, marpol, s olas and stcw. The tacit acceptance
procedure is used with much ingenuity in order to secure a more expeditious
entry into force of technical amendments, and its advantage has been quite
evident.75
In addition to these major conventions adopted by imo, there are other in-
ternational conventions that are administrated by the imo Secretary-General
but not adopted under the auspices of imo. The most notable examples are
the Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter, 1972 (London Convention), and the 1996 Protocol to the
London Convention (London Protocol).76 Furthermore, imo has adopted a
large number of non-treaty instruments such as codes, recommendations and
guidelines, which relate to matters such as cargoes, marine technology, marine
environment, navigation, search and rescue, radio-communications, and ma-
rine training and certification.
ii Reference to imo in unclos
Several of the major imo conventions, including solas, marpol and
colreg, were in existence when unclos was negotiated from 1973 to
1982 at the Third United Nations Conference on the Law of the Sea (Third
Conference).77 The objective of the Third Conference was to set out the general
74 imo, Conventions: Introduction – Amendments, http://www.imo.org/en/About/Conven
tions/Pages/Home.aspx.
75 Mensah, supra note 48, at 59. Md Saiful Karim, Prevention of Pollution of the Marine Envi-
ronment from Vessels: The Potential and Limits of the International Maritime Organization
(Springer, 2015) 36–37.
76 imo, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, http://www.imo.org/en/OurWork/Environment/LCLP/Pages/default.aspx.
77 United Nations Codification Division Publications, Diplomatic Conferences, Third Unit-
ed Nations Conference on the Law of the Sea, 1973–1982 (Third Conference), http://legal
.un.org/diplomaticconferences/1973_los/.
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via free accessThe Relationship between unclos and imo Instruments 217
legal frameworkfor all ocean uses, including navigation rights through mari-
time zones under national jurisdiction and beyond. As indicated in a study
conducted by the Secretariat of imo in 2014, “the Secretariat of imo (formerly
imco) actively contributed to the work of the Third United Nations Confer-
ence on the Law of the Sea in order to ensure that the elaboration of imo
instruments conformed with the basic principles guiding the elaboration of
unclos”.78 The official records of the Third Conferences show that, at meet-
ings of all three committees and the plenary meetings, delegations from nu-
merous States made comments and recommendations on imo’s work and
capacity as the competent international organization to deal with matters re-
lating to international shipping, particularly with respect to navigation safety,
all matters relating to ship-source marine pollution, and the transfer of tech-
nology to developing countries and the training of their personnel.79 In addi-
tion, imo was consulted as legal experts on specific issues that were under its
mandates, such as the international rules and standards on marine pollution,
and the use of terminology such as ship and vessel.80
It was recognised early in the Third Conference that imo was efficiently
rendering a vital service to the world community in the highly technical and
specialised field of shipping.81 When establishing the legal framework for the
rights and duties of flag States, coastal States and port States, unclos made
substantial use of international rules and standards developed under the aus-
pices of imo, especially in its provisions on the protection and preservation of
the marine environment by reducing or eliminating accidental and intentional
pollution from vessels. However, there is only one direct reference to imo in
unclos. It is in Annex viii on Special Arbitration when referring to the spe-
cial agency that should draw up and maintain the list of experts “in the field
78 imo, leg/misc.8, 30 January 2014, Implications of the United Nations Convention on the
Law of the Sea for the International Maritime Organization, 7, http://www.imo.org/en/
OurWork/Legal/Pages/UnitedNationsConventionOnTheLawOfTheSea.aspx. Third Unit-
ed Nations Conference on the Law of the Sea, Volume iii, a/conf.62/27, The Activities
of the Inter-Governmental Maritime Consultative Organization in Relation to Shipping
and Related Maritime Matters, http://legal.un.org/diplomaticconferences/1973_los/vol3
.shtml.
79 Third Conference, supra note 77.
80 Third Conference, supra note 77, a/conf.62/C.3/sr.15, 16 August 1974, 15th Meeting of the
Third Committee; a/conf.62/C.3/sr.21, 17 August 1975, 21st Meeting of the Third Commit-
tee; a/conf.62/sr.157, 29 March 1982, Eleventh Session – Plenary Meetings, 157th Meet-
ing; a/conf.62/l.92, 30 March 1982, Report of the Chairman of the Third Committee.
81 A/conf.62/27, 10 June 1974, ‘The Activities of the Inter-Governmental Maritime Consulta-
tive Organization in relation to Shipping and Related Maritime Matters’, Official Records
of the Third United Nations Conference on the Law of the Sea, Volume iii, 43–56.
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of navigation, including pollution from vessels and by dumping”.82 Otherwise,
unclos only make indirect reference to imo through references to the “com-
petent international organization”.
The general approach of unclos and imo is to avoid potential conflicts be-
tween the obligations of States under unclos and those in imo conventions.
unclos provides that it “shall not alter the rights and obligations of States
Parties which arise from other agreements compatible with this Convention
and which do not affect the enjoyment by other States Parties of their rights
or the performance of their obligations under this Convention.”83 At the same
time, imo has adopted the practice of including non-prejudice provisions in
its instruments, to ensure that “their text did not prejudice the codification and
development of the law of the sea in unclos or any present or future claims
and legal views of any State concerning the law of the sea and the nature and
extent of coastal and flag State jurisdiction.”84 Hence, instruments that were
developed under the auspices of imo, both pre-existing and subsequently de-
veloped, operate within the framework of unclos.
1 imo as a Competent International Organization
Numerous provisions in unclos make reference to “competent” or “appropri-
ate” international organizations, or merely international organizations or orga-
nizations, in various subject areas to assist States with implementation of their
rights and obligations or to promote cooperation. However, only in a few cases
are such organizations expressly identified.85 Nevertheless, it is widely recog-
nised that references to the “competent international organization” in unclos
in provisions relating to international shipping and the prevention and control
of marine pollution from vessels, including dumping, refers to imo, bearing in
mind imo’s global mandate as a specialised agency within the United Nations
system.86
The United Nations Division for Ocean Affairs and the Law of the Sea Office
of Legal Affairs (doalos), acting as the secretariat responsible for u nclos
under the General Assembly Resolution 49/28 of 6 December 1994, has pre-
pared a table to clarify all the references to the “competent or relevant
82 United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 unts
3 (entered into force 16 November 1994) (unclos), Annex viii, Article 2(1).
83 unclos, supra note 82, Article 311(2).
84 imo, leg/misc.8, supra note 78, at 7.
85 unclos, supra note 82, Article 39(3)(a) made reference to the International Civil Avia-
tion Organization.
86 imo, leg/misc.8, supra note 78, at 7.
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via free accessThe Relationship between unclos and imo Instruments 219
international organization” under unclos.87 Relevant provisions of unclos
referring to imo as the competent international organization have been ex-
tracted in Appendix 1. imo’s role as the competent international organization
within unclos can be summarised into three categories.
First, imo is the competent international organization to promote coopera-
tion among States at the global, regional and sub-regional levels in areas such
as navigation, the protection and preservation of the marine environment (par-
ticularly with regards to the prevention and control of pollution from vessels),
the suppression of illegal activities on the high seas, and the development and
transfer of marine technology.88 Additionally, there are also instances whereby
imo in fact acts as the competent international organization to promote coop-
eration under certain provisions of unclos, even though there is no language
in the provision in unclos suggesting a role for the competent international
organization. For example, imo served as the facilitator to promote coopera-
tion between Indonesia, Malaysia and Singapore in establishing the Coopera-
tive Mechanism on Safety of Navigation and Environment Protection in the
Straits of Malacca and Singapore as called for in Article 43 of unclos.89 In
addition, imo has also been involved in technical cooperation projects relat-
ing to maritime domain awareness in the West and Central Africa region for
many years to address the threat of piracy and armed robbery against ships,
and facilitated the adoption of the Djibouti Code of Conduct for the Western
Indian Ocean and the Gulf of Aden.90 In these cases, imo promotes States’
duty to cooperate in the repression of piracy and armed robbery against ships
as prescribed by Article 100 of unclos.
Second, imo serves as the competent international organization to oversee
and approve designated sea lanes and routeing measures proposed by coastal
States in order to enhance maritime safety or promote the protection of the
marine environment. imo has been recognised as “the only international
body for developing guidelines, criteria and regulations on an international
level for ships’ routeing systems”.91 Of particular importance in this regard is
87 United Nations, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs
(doalos), ‘“Competent or relevant international organizations” under the United Na-
tions Convention on the Law of the Sea’ (1996) Law of the Sea Bulletin No. 31, 79–95.
88 unclos, supra note 82, Articles 60(3)&(5), 123, 266, and 268–272.
89 unclos, supra note 82, Article 43. Cooperative Mechanism on Safety of Navigation and
Environment Protection in the Straits of Malacca and Singapore, Establishment, http://
www.cm-soms.com/index.php?p=td&id=6.
90 imo, Maritime Security and Piracy, http://www.imo.org/en/OurWork/Security/Pages/
MaritimeSecurity.aspx.
91 solas, supra note 49, Regulation v/10 – Ships’ Routeing, para. 2.
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the different language used by unclos to define the obligations of coastal
States in different maritime zones where those measures are proposed. A State
that intends to designate sea lanes and prescribe traffic separation schemes
in its territorial sea should “take into account” recommendations of imo.92 In
contrast, a State bordering a strait used for international navigation that wish-
es to designate sea lanes or prescribe traffic separation schemes in the strait
must submit such proposals to imo with a view to their adoption.93 Similarly,
imo is the competent international organization to adopt sea lanes and traffic
separation schemes as proposed by an archipelagic State to be used within its
archipelagic waters.94 In addition, if a State intends to adopt special manda-
tory measures to prevent ship-source pollution within a clearly defined area
of their eezs, they must first submit scientific and technical evidence in sup-
port of their proposal as well as information on necessary reception facilities
to imo. Then, with imo’s approval, they may adopt laws and regulations for
the prevention, reduction and control of pollution from vessels implementing
international rules and standards as made applicable through imo.95
imo’s third function is to act as the competent international organization
for States to develop complementary international agreements in the field
of international shipping and the protection and preservation of the marine
environment, particularly in areas that are lacking these rules and standards.
unclos generally recognises two fora for developing complementary inter-
national agreements, through diplomatic conferences and through the work
of competent international organizations. The former are ad hoc meetings
among concerned States and other stakeholders and generally focus on a spe-
cific subject. By contrast, the competent international organizations, such as
imo, are standing bodies that offer their participating members institutional
expertise and support, as well as a forum for periodically reassessment and
monitor of implementation and compliance.96 This role of imo is most domi-
nate in Part xii of unclos that addresses the protection and preservation of
the marine environment with respect to the prevention, reduction and control
of vessel source pollution, dumping at sea, the safety of navigation and rout-
ing systems, and the design, construction, equipment and manning of vessels.
92 unclos, supra note 82, Article 22(3).
93 unclos, supra note 82, Article 41(4)–(5).
94 unclos, supra note 82, Article 53(9).
95 unclos, supra note 82, Article 211(6)(a).
96 Craig H. Allen, ‘Revisiting the Thames Formula: The Evolving Role of the International
Maritime Organization and Its Member States in Implementing the 1982 Law of the Sea
Convention’, (2009) 10 San Diego International Law Journal 265–333, at 283–287.
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