2.3 The role and competences of the IMO
The idea of establishing an international organisation to study and develop an international legal order for peaceful uses of the seas “in conformity with the common interests of the international collectivity” first emerged in the inter-war period.(1) Resolution by the Institute of International Law, Annuaire de l’Institut de Droit International, Vol. 39 (1934) 711-713, cited in Kenneth R. Simmonds, The International Maritime Organization (London: Simmonds & Hill Publishing Ltd, 1994), 1. The IMO (IMCO at the time) was established in 1948 in accordance with Articles 57 and 63 of the UN Charter of 1948.(2) Simmonds, ibid. Thus, the IMO is a UN specialised agency vested with responsibility for the safety and security of shipping and the prevention of marine and air pollution by ships.
The mandate of the IMO is set out in the IMO Convention.(3) Convention on the Intergovernmental Maritime Consultative Organization (hereinafter the IMO Convention), Geneva, 6 March 1948, in force 17 March 1958, 289 UNTS 3. One of the central tasks of the IMO is to enable cooperation between States ‘in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade’, and ‘to encourage and facilitate the general adoption of the highest practicable standards in matters concerning the maritime safety, efficiency of navigation and prevention and control of marine pollution from ships.’(4) Ibid., Article 1(a). In addition, the IMO addresses ‘any matters concerning shipping and the effect of shipping on the marine environment that may be referred to it by any organ or specialised agency of the United Nations.’(5) The IMO Convention (n 30), Article 1(d). These tasks have to a significant extent been accomplished through multilateral instruments of a binding nature.(6) Aldo Chircop, ‘The International Maritime Organization’ in Donald R Rothwell, Alex G Oude Elferink, Karen N Scott, Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press 2015), 421.
The IMO’s scope of work has evolved remarkably since its early years. After the Torrey Canyon disaster (1967), the task of adopting standards on the prevention and control of marine pollution from ships was expressly incorporated into the IMO’s mandate.(7) Amendments to the Convention on the Inter-Governmental Maritime Consultative Organization, London, 17 November 1977, in force 10 November 1984, UNTS 1984 p 269. See also Chircop (ibid.), 419. Since then, the IMO has contributed to the development of general marine environmental protection law, exceeding its initial task of pollution control and encompassing a wider range of rights and duties relating to ocean environment and development activities.(8) Simmonds (n 28), 37; Obinna Okere, ‘The Technique of International Maritime Legislation’, The International and Comparative Law Quarterly, Jul., 1981, Vol. 30, No. 3 (Jul., 1981), 513-536, 524. Malgosia Fitzmaurice and Olufemi Elias, Contemporary issues in the law of treaties (Utrecht: Eleven International Publishing, 2005), 90; Julian Roberts, Aldo Chircop and Siân Prior, ‘Area-Based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area Concept’, (2010) 25 Int’l J. Marine & Coastal L. 483. The IMO’s strategy has changed from reactive to proactive; the problems the IMO addresses today encompass environmental matters, climate change, maritime security, piracy, armed robbery, and ocean governance.(9) OECD (2016), International Regulatory Co-operation: The Role of International Organisations in Fostering Better Rules of Globalisation, 44, <https://doi.org/10.1787/9 789 264 244 047-en>, <Microsoft Word - IO-CRC.docx (oecd-ilibrary.org)>; Ilker Basaran, ‘The Evolution of the International Maritime Organization's Role in Shipping’ (2016) 47 J. Mar.L. & Com. 101. The Strategic Plan of the IMO confirms its mission to promote safe, secure, environmentally sound, efficient and sustainable shipping, through cooperation and in light of the 2030 Agenda for Sustainable Development.(10) IMO Resolution A.1149(32), Revised Strategic Plan for the Organization for the Six-Year Period 2018 to 2023, available at <Strategic Plan for the Organization (imo.org)>. On the influence of Sustainable Development Goals on the IMO’s agenda see also Rosalie P. Balkin, ‘The IMO and Global Ocean Governance: Past, Present, and Future’ in David Joseph Attard, Rosalie P. Balkin and Donald W. Greig (eds), The IMLI Treatise on Global Ocean Governance: Volume III: The IMO and Global Ocean Governance (Oxford: Oxford University Press, 2018), 2.
This evolution is hardly surprising: the IMO holds the responsibility of being the “competent international organization” under UNCLOS to adopt global shipping standards. As a dynamic, living instrument, UNCLOS also recognises that ‘the problems of ocean space are closely interrelated and need to be considered as a whole’.(11) The Preamble, UNCLOS (n 2); IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, 31 January 2007, LEG/MISC.5. See also UNGA, A/Res/66/288, The future we want, <un.org>. Since the IMO’s mission has always been global in scope, it is pertinent for the IMO to adapt its law-developing activities to the dynamic context of the international legal order.
Article 2(b) of the IMO Convention envisages that, among other aspects, the IMO’s function is to “[p]rovide for the drafting of conventions, agreements, or other suitable instruments, and recommend these to Governments and to intergovernmental organizations, and convene such conferences as may be necessary.”(12) Article 3(b) in the IMO Convention (n 30). The wording of Article 2(b) indicates that the IMO may draft both binding and non-binding instruments to accomplish its tasks.(13) The IMO does not have competence to take formally binding decisions for its member States; the power to adopt IMO’s instruments and the responsibility to implement and enforce them lies with the member States. Other than the requirement that the instrument to be drafted should be ‘suitable’, the IMO Convention does not clarify the criteria for choosing a particular form for an instrument or for determining whether or not it should be binding. The IMO Convention should be understood in light of the UNCLOS requirement that States must take all appropriate measures necessary to prevent, reduce and control pollution of the marine environment and to endeavour to harmonize their policies.(14) Articles 194 and 211. In practice, the IMO contribution to the development of the international maritime law consists of ‘hard’ and ‘soft’ law norms, where non-binding provisions may eventually lead to the adoption of a binding instrument, the establishment of detailed technical rules and standards or the provision of authoritative interpretations of a convention.(15) Dorota Lost-Sieminska, ‘The International Maritime Organization’ in Michael J. Bowman and Dino Kritsiotis, Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018).
Binding multilateral instruments in the shape of conventions, agreements, protocols and codes have been central to the IMO’s input in international maritime law-making. Since its establishment in 1958, the IMO has contributed to the adoption of over fifty treaties (and multiple non-mandatory instruments).(16) Lost-Sieminska (ibid.). In addition, the IMO updates the major maritime safety conventions, which already existed when the IMO was created, such as SOLAS, OILPOL, Load Lines Convention and COLREG. The proposing Member States first needs to demonstrate a ‘compelling need for a new treaty’ to the relevant IMO Committee.(17) Dorota Lost-Sieminska, ‘Implementation of IMO treaties in domestic legislation: Implementation and enforcement as the key to effectiveness of international treaties’ in Justyna Nawrot and Zuzanna Pepłowska-Dąbrowska (eds), Maritime Safety in Europe: A Comparative Approach (1st ed., Informa Law from Routledge 2020), 7 <https://doi.org/10.4324/9 781 003 030 775>. The IMO practice indicates that serious matters pertaining to central areas of the IMO’s competence will usually be addressed by treaties.
The key treaty regulating ship-source pollution is the International Convention for the prevention of pollution from ships of 1973, as amended in 1978 (hereafter referred to as MARPOL). Although closely linked to UNCLOS, Marpol performs a different function. Its objective is not to address jurisdictional issues, but is instead to specify how State jurisdiction should be exercised so as to ensure compliance with safety and anti-pollution regulations.(18) IMO (n 38), 8. At the same time, obligations under MARPOL and other IMO conventions should be carried out in a manner consistent with UNCLOS.(19) UNCLOS (n 2) Article 237. In its Article 9, MARPOL also took account of the work on the codification and development of the law of the sea carried out by the United Nations Conference on the Law of the Sea (UNCLOS) at the time of its adoption and it expressly says that it is without prejudice to this work and to “the 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.”
The IMO may adopt Special Areas under MARPOL Annexes I (oil), II (noxious liquid substances), V (garbage) and VI (SOx emission control areas), where discharges of the respective pollutants are limited or banned.(20) See also 2013 Guidelines for the Designation of Special Areas under MARPOL, <imo.org>. The special areas also extend to parts of the high seas (in the Mediterranean and Antarctica).(21) Jeff Ardron, Overview of Existing High Seas Spatial Measures and Proposals with Relevance to High Seas Conservation, as of August 2007, p 22, <ewsebm-01-ardron-en (cbd.int)>. As mentioned earlier, the IMO also approves coastal States’ applications under Article 211(6) UNCLOS for the establishment of specially protected sea areas in their EEZs.
MARPOL requires States to give effect to its provisions and related Annexes in order to prevent pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention. Like other IMO conventions, MARPOL is aimed principally at the flag State. Implementation of MARPOL standards is primarily the responsibility of the flag State. Flag States’ duty to ensure compliance are generally aimed at technical surveys and issuing certificates,(22) See Regs 4 and 5-8 of Annex I Marpol. See also Articles 94 and 217 of UNCLOS. and investigating violations. Persons and entities directly involved with the vessel, such as the shipping company, the master and crew, and classification societies, all play a crucial role in ensuring compliance with the Marpol obligations.
The way in which international treaties are implemented in the domestic legal systems varies from State to State. Universal and uniform acceptance and proper implementation by States of the IMO treaties is a necessary condition for the effectiveness of IMO measures.(23) See, e.g., Lost-Sieminska (n 44). The IMO itself does not have a mandate to examine the quality of national implementation and to take enforcement measures vis-à-vis its Member States.(24) Lost-Sieminska. However, IMO renders implementation support to member States through the Sub-Committee on Implementation of IMO instruments under the Maritime Safety Committee (MSC) and the Marine Environmental Protection Committee (MEPC).