Adopting a convention, Entry into force, Accession, Amendment, Enforcement, Tacit acceptance procedure
The industrial revolution of the eighteenth and nineteenth centuries and the upsurge in international commerce which followed resulted in the adoption of a number of international treaties related to shipping, including safety. The subjects covered included tonnage measurement, the prevention of collisions, signalling and others.
By the end of the nineteenth century suggestions had even been made for the creation of a permanent international maritime body to deal with these and future measures. The plan was not put into effect, but international co-operation continued in the twentieth century, with the adoption of still more internationally-developed treaties.
By the time IMO came into existence in 1958, several important international conventions had already been developed, including the International Convention for the Safety of Life at Sea of 1948, the International Convention for the Prevention of Pollution of the Sea by Oil of 1954 and treaties dealing with load lines and the prevention of collisions at sea.
IMO was made responsible for ensuring that the majority of these conventions were kept up to date. It was also given the task of developing new conventions as and when the need arose.
The creation of IMO coincided with a period of tremendous change in world shipping and the Organization was kept busy from the start developing new conventions and ensuring that existing instruments kept pace with changes in shipping technology. It is now responsible for more than 50 international conventions and agreements and has adopted numerous protocols and amendments.
Adopting a convention
This is the part of the process with which IMO as an Organization is most closely involved. IMO has six main bodies concerned with the adoption or implementation of conventions. The Assembly and Council are the main organs, and the committees involved are the Maritime Safety Committee, Marine Environment Protection Committee, Legal Committee and the Facilitation Committee. Developments in shipping and other related industries are discussed by Member States in these bodies, and the need for a new convention or amendments to existing conventions can be raised in any of them.
Entry into force
The adoption of a convention marks the conclusion of only the first stage of a long process. Before the convention comes into force - that is, before it becomes binding upon Governments which have ratified it - it has to be accepted formally by individual Governments.
Signature, ratification, acceptance, approval and accession
The terms signature, ratification, acceptance, approval and accession refer to some of the methods by which a State can express its consent to be bound by a treaty.
Consent may be expressed by signature where:
- the treaty provides that signature shall have that effect
- it is otherwise established that the negotiating States were agreed that signature should have that effect
- the intention of the State to give that effect to signature appears from the full powers of its representatives or was expressed during the negotiations (Vienna Convention on the Law of Treaties, 1969, Article 12.1).
A State may also sign a treaty "subject to ratification, acceptance or approval". In such a situation, signature does not signify the consent of a State to be bound by the treaty, although it does oblige the State to refrain from acts which would defeat the object and purpose of the treaty until such time as it has made its intention clear not to become a party to the treaty (Vienna Convention on the Law of Treaties, Article 18(a)).
Signature subject to ratification, acceptance or approval
Most multilateral treaties contain a clause providing that a State may express its consent to be bound by the instrument by signature subject to ratification.
In such a situation, signature alone will not suffice to bind the State, but must be followed up by the deposit of an instrument of ratification with the depositary of the treaty.
This option of expressing consent to be bound by signature subject to ratification, acceptance or approval originated in an era when international communications were not instantaneous, as they are today.
It was a means of ensuring that a State representative did not exceed their powers or instructions with regard to the making of a particular treaty. The words "acceptance" and "approval" basically mean the same as ratification, but they are less formal and non-technical and might be preferred by some States which might have constitutional difficulties with the term ratification.
Many States nowadays choose this option, especially in relation to multinational treaties, as it provides them with an opportunity to ensure that any necessary legislation is enacted and other constitutional requirements fulfilled before entering into treaty commitments.
The terms for consent to be expressed by signature subject to acceptance or approval are very similar to ratification in their effect. This is borne out by Article 14.2 of the Vienna Convention on the Law of Treaties which provides that "the consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification."
Most multinational treaties are open for signature for a specified period of time. Accession is the method used by a State to become a party to a treaty which it did not sign whilst the treaty was open for signature.
Technically, accession requires the State in question to deposit an instrument of accession with the depositary. Article 15 of the Vienna Convention on the Law of Treaties provides that consent by accession is possible where the treaty so provides, or where it is otherwise established that the negotiating States were agreed or subsequently agreed that consent by accession could occur.
Technology and techniques in the shipping industry change very rapidly these days. As a result, not only are new conventions required but existing ones need to be kept up to date. For example, the International Convention for the Safety of Life at Sea (SOLAS), 1960 was amended six times after it entered into force in 1965 - in 1966, 1967, 1968, 1969, 1971 and 1973. In 1974 a completely new convention was adopted incorporating all these amendments (and other minor changes) and has itself been modified on numerous occasions.
In early conventions, amendments came into force only after a percentage of Contracting States, usually two thirds, had accepted them. This normally meant that more acceptances were required to amend a convention than were originally required to bring it into force in the first place, especially where the number of States which are Parties to a convention is very large.
This percentage requirement in practice led to long delays in bringing amendments into force. To remedy the situation a new amendment procedure was devised in IMO. This procedure has been used in the case of conventions such as the Convention on the International Regulations for Preventing Collisions at Sea, 1972, the International Convention for the Prevention of Pollution from Ships, 1973 and SOLAS 1974, all of which incorporate a procedure involving the "tacit acceptance" of amendments by States.
Instead of requiring that an amendment shall enter into force after being accepted by, for example, two thirds of the Parties, the “tacit acceptance” procedure provides that an amendment shall enter into force at a particular time unless before that date, objections to the amendment are received from a specified number of Parties.
In the case of the 1974 SOLAS Convention, an amendment to most of the Annexes (which constitute the technical parts of the Convention) is `deemed to have been accepted at the end of two years from the date on which it is communicated to Contracting Governments...' unless the amendment is objected to by more than one third of Contracting Governments, or Contracting Governments owning not less than 50 per cent of the world's gross merchant tonnage. This period may be varied by the Maritime Safety Committee with a minimum limit of one year.
As was expected the "tacit acceptance" procedure has greatly speeded up the amendment process. Amendments enter into force within 18 to 24 months, generally Compared to this, none of the amendments adopted to the 1960 SOLAS Convention between 1966 and 1973 received sufficient acceptances to satisfy the requirements for entry into force.
"Classical amendment procedures" and "Tacit acceptance procedure"
The following infographics illustrate both types of amendment using MARPOL as an example.
The enforcement of IMO conventions depends upon the Governments of Member Parties.
Contracting Governments enforce the provisions of IMO conventions as far as their own ships are concerned and also set the penalties for infringements, where these are applicable.
They may also have certain limited powers in respect of the ships of other Governments.
In some conventions, certificates are required to be carried on board ship to show that they have been inspected and have met the required standards. These certificates are normally accepted as proof by authorities from other States that the vessel concerned has reached the required standard, but in some cases further action can be taken.
The 1974 SOLAS Convention, for example, states that "the officer carrying out the control shall take such steps as will ensure that the ship shall not sail until it can proceed to sea without danger to the passengers or the crew". This can be done if "there are clear grounds for believing that the condition of the ship and its equipment does not correspond substantially with the particulars of that certificate".
An inspection of this nature would, of course, take place within the jurisdiction of the port State. But when an offence occurs in international waters the responsibility for imposing a penalty rests with the flag State.
Should an offence occur within the jurisdiction of another State, however, that State can either cause proceedings to be taken in accordance with its own law or give details of the offence to the flag State so that the latter can take appropriate action.
Under the terms of the 1969 Convention Relating to Intervention on the High Seas, Contracting States are empowered to act against ships of other countries which have been involved in an accident or have been damaged on the high seas if there is a grave risk of oil pollution occurring as a result.
The way in which these powers may be used are very carefully defined, and in most conventions the flag State is primarily responsible for enforcing conventions as far as its own ships and their personnel are concerned. The Organization itself has no powers to enforce conventions.
However, IMO has been given the authority to vet the training, examination and certification procedures of Contracting Parties to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978. This was one of the most important changes made in the 1995 amendments to the Convention which entered into force on 1 February 1997. Governments have to provide relevant information to IMO's Maritime Safety Committee which will judge whether or not the country concerned meets the requirements of the Convention.
Relationship between Conventions and interpretation
Some subjects are covered by more than one Treaty. The question then arises which one prevails. The Vienna Convention on the Law of Treaties provides in Article 30 for rules regarding the relationship between successive treaties relating to the same subject-matter. Answers to questions regarding the interpretation of Treaties can be found in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties. A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. When a Treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
Uniform law and conflict of law rules
A substantive part of maritime law has been made uniform in international Treaties. However, not every State is Party to all Conventions and the existing Conventions do not always cover all questions regarding a specific subject. In those cases conflict of law rules are necessary to decide which national law applies. These conflict of law rules can either be found in a Treaty or, in most cases, in national law.
The majority of conventions adopted under the auspices of IMO or for which the Organization is otherwise responsible, fall into three main categories.
The first group is concerned with maritime safety; the second with the prevention of marine pollution; and the third with liability and compensation, especially in relation to damage caused by pollution. Outside these major groupings are a number of other conventions dealing with facilitation, tonnage measurement, unlawful acts against shipping and salvage, etc.