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64 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 43:55 and the Federal Republic of Germany (4,077,475). 26 Liberia, the third largest with 10,078,778 tons, and Panama, the eighth largest with 4,357,800 tons, were not elected. The remaining six members elected to “ensure adequate representation of members” were Greece, Sweden, Belgium, Denmark, Brazil, and India. As the ICJ discovered, the problem extended beyond mere elections or simple treaty interpretations. Judging from the use of “shall” in Article 28(a) of the Convention, eight of those fourteen members were required to be comprised of the “largest ship-owning nations.” 27 If the vote had followed this interpretation of Article 28(a), the Advisory Opinion of the Court suggests that Liberia and Panama would have been elected instead of France (ninth) and Germany (tenth). 28 Understandably, Panama called the results a contravention of the Convention, the principles of international law, 29 and a violation of Article 28(a) through the use of an “[a]bsurdity of criterion used by the majority of the Assembly.” 30 Panama continued, in reference to the nation’s role as a leading flag of convenience registry, that “[t]he violation of the law of the flag was a violation of the sovereignty of the Republic of Panama.” 31 Internal attempts to negotiate and solve the dispute failed, and the matter was referred to the ICJ for an Advisory Opinion. E. Referral of the Dispute to the International Court of Justice, 1959 After several maneuvers and negotiations, the matter was referred to the Court for an Advisory Opinion in accordance with Articles 65(1)–(2) and Article 66(1) of the Court. The Organization’s own Convention provided in Article 56 that questions of law may be referred to the ICJ and the United Nations Economic and Social Counsel (“ECOSOC”) for interpretation and application pursuant to Article IX of the Agreement Between the United Nations and IMCO. 32 Article 56 of the Convention provided that “[a]ny legal question which cannot be settled as provided 26. See IMCO/A.1/Working Paper 5; see also IMCO/A.1/Working Paper 5/Add. 1; see also I.C.J. Advisory Opinion, supra note 20, at 155. 27. I.C.J. Advisory Opinion, supra note 20, at 160. 28. Written Statement of Republic of Panama, Constitution of Maritime Safety Committee of Inter- Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 165, 172–83 (Nov. 20, 1959). [hereinafter I.C.J. Pleadings]. 29. Id. at 197. 30. Id. at 180. 31. Request for Advisory Opinion, Constitution of Maritime Safety Committee of Inter- Governmental Maritime Consultative Organization, 1960, I.C.J. Pleadings 8 (Mar. 23, 1959); see also Statute of the International Court of Justice, 1940 I.C.J. Acts & Docs. 27, available at http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0. Article 65 of the Statute of the International Court of Justice provides that: (1) The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. (2) Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question. 32. See Convention of the Inter-Governmental Maritime Consultative Organization art. 56, Mar. 6, 1948, 9 U.S.T. 621, 289 U.N.T.S. 3, available at http://www.yale.edu/lawweb/avalon/decade/decad056.htm.
2007] THE CONSTITUTION: FROM THE MSC TO THE COUNCIL 65 in Article 55 shall be referred by the Organization to the ICJ for an Advisory Opinion in accordance with Article 96 of the Charter of the United Nations.” 33 The question before the Court was whether “the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, which was elected on 15 January 1959, [was, as a result of excluding Liberia and Panama] constituted in accordance with the Convention for the Establishment of the Organization.” 34 Various countries, including Liberia and Panama, put forward texts of varying interpretations for the Court’s consideration. To resolve those differences of opinion, the Court addressed the following preliminary issues: (1) the meaning of “elected,” (2) whether the elections were discretionary or mandatory, (3) what constituted “having an important interest in maritime safety,” (4) the meaning of the “largest ship-owning nations,” and (5) the criteria for constitution of “registered tonnage.” 35 As part of the Court’s proceedings, written and oral statements were also submitted on behalf of the Governments of Belgium, 36 Denmark, 37 France, 38 India, 39 Italy, 40 Liberia, 41 the Netherlands, 42 Norway, 43 the U.K., 44 the U.S., 45 the Republic of China, 46 Panama, 47 and Switzerland. 48 33. Id. 34. I.C.J. Advisory Opinion, supra note 20, at 151–53. 35. Id. at 158–67. 36. Lettre de l'ambassadeur de Belgique aux Pays-Bas au Greffier de la Cour, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 23 (Nov. 19, 1959). 37. Letter from the Ambassador of Denmark to the Netherlands, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 227 (Dec. 4, 1959). 38. Exposé écrit du Gouvernement de la République Française, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 24. 39. Written Statement of Government of India, Constitution of Maritime Safety Committee of Inter- Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 253. 40. Exposé écrit du Gouvernement de la République Italienne, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 219; Exposé oral de M. Monaco (Italie), Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J Pleadings 331. 41. Written Statement of Government of Liberia, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 33 [hereinafter Liberian Pleadings]; Oral Statement of Mr. Weeks (Liberia), Constitution of Maritime Safety Committee of Inter- Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 269. 42. Written Statement of Government of Kingdom of Netherlands, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 247; Oral Statement of Mr. Riphagen (Netherlands), Constitution of Maritime Safety Committee of Inter- Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 351. 43. Written Statement for Government of Kingdom of Norway, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 242; Oral Statement of Mr. Seyersted (Norway), Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 360. 44. Written Statement of Government of United Kingdom of Great Britain and Northern Ireland, Constitution of Maritime Safety Committee of Inter-Governmental Maritime Consultative Organization, 1960 I.C.J. Pleadings 228; Oral Statement of Mr. Vallat (United Kingdom), Constitution of Maritime
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