The New Convention on Facilitation of International
Maritime Traffic
Jochen Erler *
Entitled Merchant Shipping on a Sea of Red Tape, a brochure
circulated at the Washington Conference of the International Chamber
of Commerce in 1959 suggested, to expedite the flow of sea trade,
that the Intergovernmental Maritime Consultative Organization
(IMCO) adopt facilitation procedures comparable to those accorded
to the International Civil Aviation Organization (ICAO).
The Pratice of ICAO. The Chicago Convention of 1944 1 has ac-
corded ICAO certain regulatory powers 2 whose objectives are se-
curing world-wide uniformity of aviation law and the facilitation of
international air traffic. Article 37 of the Chicago Convention pro-
vides inter alia that ICAO “shall adopt and amend from time to time,
as may be necessary, international standards and recommended
practices and procedures dealing with … customs and immigration
procedures . .. and such other matters concerned with the safety,
regularity and efficiency of air navigation as may from time to time
appear appropriate”. The policy with respect to the implementation
by States of the Standards and Recommended Practices on Facilitation
is strengthened by Article 22 of the Chicago Convention, which ex-
presses the obligation accepted by each contracting State “to adopt
all practicable measures, through the issuance of special regulations
or otherwise, to facilitate and expedite navigation by aircraft between
territories of contracting States, and to prevent unnecessary delays
to aircraft, crews, passengers, and cargo, especially in the adminis-
tration of the laws relating to immigration, quarantine, customs and
clearance”. Furthermore, under the terms of Article 23 of the Chicago
Convention each contracting State “undertakes, so far as it may find
practicable, to establish customs and immigration procedures affect-
ing international air navigation in accordance with the practices
which may be established or recommended from time to time, pur-
suant to this Convention”.
* Gerichtsreferendar, Ratisbon (West Germany); LL. M. (McGill).
1 Convention on International Civil Aviation, ICAO Doc. 7300.
2 The author’s note, “Regularly Procedures of ICAO as a model for IMCO”,
(1964) 10 McGill L.J. 262.
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The elaboration and periodical revision of the Facilitation Regu-
lations which are laid down in Annex 9 to the Chicago Convention,3
led to the elimination of many expensive, troublesome, and time-
consuming formalities involved in crossing national boundaries. The
waiting time of international air passengers and air cargo was cut
down, and much of the paper work that delays travellers and causes
airlines to retain large clerical stdffs, was eliminated. It has been
estimated that, as a result of ICAO’s efforts in the field of facilitation,
within a period of five years, passenger delay between landing at
and leaving the airport had on average, been reduced by one-third.
Correspondingly, the time on the ground at intermediate stops on
international air routes had been reduced by as much as one-half in
some cases.4
The Practice of IMCO. In contrast to ICAO, IMCO has no com-
parable regulatory powers.5 This could be attributed to the reluctance
on the part of IMCO’s considerable number of Eastern-block members
to allow limitations on their sovereignty and thus opposition to any
sort of legislative competence of IMCO. Furthermore, the technical
annexes to existing maritime conventions –
the Convention on
Safety of Life at Sea of 1948, 6 and the Convention for the Prevention
of Pollution of the Sea by Oil of 1954 7 –
do not require an especially
flexible amending procedure, because these annexes contain material
of a relatively static nature which does not require continual revision.
The martime regulations are amended quite efficiently by the tra-
ditional procedure as applied to the revision of international treaties
in that full-scale conferences are convened.8
The Origin of the New Convention. Taking a long-overdue ini-
tiative in pointing out the difficulties in sea trade and the necessity
of efficient facilitation in this field, the users of international mar-
itime transport who are members of the International Chamber of
Commerce published the brochure mentioned above containing the
proposal that IMCO do its utmost to that end. For best achieving
3 International Standards and Recommended Practices, Facilitation Annex 9
to the Convention on International Civil Aviation, (4th edition, Nov. 1960).
4 Memorandum on ICAO, (4th edition 1963) p. 23-25.
5 Convention on the Inter-governmental Maritime Consultative Organization,
Geneva 1948; see Peaslee, 1 International Governmental Organizations (2nd edi-
tion, 1961) p. 904.
63 United States Treaties and Other International Agreements (1955), 3451.
Final Act of Conference and Text of the International Convention for the
Prevention of Pollution of the Sea by Oil (Cmd. 9197, 1954).
8 The Assembly of IMCO amended in 1960 the standards of the Convention on
Safety of Life at Sea, and in 1962 the annex to the Prevention of Pollution of
the Sea by Oil Convention.
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INTERNATIONAL MARITIME TRAFFIC
this objective, it appeared advisable not only to adopt a new con-
vention similar to the existing maritime conventions, but also to
provide for a more flexible procedure for amending the technical
annex of the proposed new convention.
The Member States of IMCO responded favourably to this sug-
gestion, establishing a Group of Experts for the purpose of drawing
up a convention on the facilitation of maritime traffic. After this
group had completed its task, a Conference on Facilitation of Mar-
itime Travel and Transport was held in London from March 24th
to April 9th, 1965, fifty-seven states being represented. The delegates
used as a basis for discussion the draft convention and its annex
prepared by the Group of Experts.9 They accepted to a large extent
the suggestions of the experts both as to structure and wording of
the Convention.
The Characteristics of the New Convention. The Convention on
Facilitation of International Maritime Traffic 10 consists of a few
basic articles dealing with the objectives of the Convention, the duties
of the contracting parties, and the amending procedure for the In-
ternational standards and recommended practices which are laid
down in a comparatively extensive Annex. This Annex to the Con-
vention deals with (a) documents required on arrival and departure
of persons or cargo, (b) measures to facilitate clearances of cargo,
passengers, crew, and baggage,
(c) public health and quarantine
including sanitary measures for animals and plants, and (d) services
at ports.
Under the Convention, the contracting parties undertake to adopt,
in accordance with the provisions of the Convention and its Annex,
all appropriate measures to facilitate and expedite international sea
trade and to prevent unnecessary delays to ships and to persons and
property on board (Art. 1). They furthermore undertake to co-
operate in securing the highest practicable degree of uniformity in
formalities, documentary requirements and procedures in all matters
in which such uniformity will facilitate and improve international
maritime traffic. Any alterations in formalities, documentary require-
ments and procedures to meet special requirements of a domestic
nature will be kept to a minimum. (Art. 3).
9 For the text of this final draft, see IMCO Doe. FAL/CONF/1.
10 Final Act of the International Conference on Facilitation of Maritime Travel
and Transport, 1965 (as published by IMCO). On November 25, 1965, the Con-
vention had been signed without reservation as to acceptance by Monaco (April 9,
1965) and Ghana (November 5, 1965). The Convention will enter into force upon
acceptance by at least ten states (Art. XI).
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The contracting parties, however, retain their full discretionary
power in implementing the international regulations as contained in
the Annex. They may apply temporary measures “to preserve public
morality, order and security” or to prevent the introduction or spread
of diseases or pests affecting public health, animals or plants (Art.
5, para. 2). Moreover, all matters not expressly dealt with in the
Convention remain subject to the legislation of the contracting gov-
ernments (Art. 5, para. 3).
Notification of compliance or non-compliance. The London Con-
ference did not follow the proposal of the Expert Group in all
instances. There are two noteworthy departures from the draft
prepared by the latter.
The first change concerns the legal status of the international
regulations, which are recommendations rather than binding rules.”
While the draft convention envisaged the notification of differences
which may exist between the domestic regulations and the Annex
material –
the Con-
vention imposes the obligations to notify IMCO of non-compliance
with standards and of compliance with recommended practices:
both standards and recommended practices –
Any Contracting Government that finds it impracticable to comply with any
Standard by bringing its own formalities, documentary requirements or
procedures into full accord with it or which deems it necessary for special
reasons to adopt formalities, documentary requirements or procedures dif-
fering from that Standard, shall so inform the Secretary-General and notify
him of the differences between its own practice and such Standard …
Contracting Governments are urged to bring their formalities, documentary
requirements and procedures into accord with the Recommended Practices
insofar as practicable. As soon as any Contracting Government brings its
own formalities, documentary requirements and procedures into accord with
any Recommended Practice, it shall notify the Secretary-General thereof.. 12
In consequence of these provisions, the contracting parties may at
their discretion contract out of the international standards, and may
contract in the international recommended practices. If IMCO does
not receive any notification, the implementation of the standards
and the rejection of the recommended practices can be assumed.
This different treatment of standards and recommended practices
emphasizes the distinct legal status of the Annex material, while the
implementation of the standards is considered to be necessary, that
of the recommended practices is merely deemed desirable for achiev-
ing the facilitation of sea trade:
‘I A proposal contained
in the preliminary draft, to the effect that the
contracting parties shall undertake not to establish any regulations less favourable
than the standards, had been omitted already by the Expert Group in their final
draft.
12 Art. 8 of the Convention (emphasis mine).
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INTERNATIONAL MARITIME TRAFFIC
“Standards” are those measures the uniform application of which by Con-
tracting Governments in accordance with the Convention is necessary and
practicable in order to facilitate international maritime traffic;
“Recommended Practices” are those measures the application of which by
Contracting Governments is desirable in order to facilitate international
maritime traffic.’3
Procedures for the Amendment of the Annex. The second depar-
ture from the draft convention concerns the provisions for amend-
ment of international regulations as laid down in the Annex to the
Convention. The draft of the Expert Group suggested a procedure
similar to that of ICAO: preparation of the amendments by a techni-
cal committee of IMCO, and their adoption by the Council and the
Assembly of IMCO. The delegates to the Conference, however, re-
fused to establish a permanent technical committee within IMCO.14
They abandoned the concept of attributing to IMCO important regu-
latory powers. Instead of the Organization, the contracting parties
themselves prepare and adopt the amendments for the purpose of
general acceptance. This may be done either by communicating with
the Organization or by convening a conference:
The Annex to the present Convention may be amended by the Contracting
Governments, either at the proposal of one of them or by a conference
convened for that purpose.’ 5
(i) The Communicating Procedure. According to Art. 7 para. 2
of the Convention, the contracting parties may propose amendments
to the international regulations by forwarding the draft amendments
to the Secretary-General of IMCO. Upon express request, the Sec-
retary-General communicates any such proposal directly to all con-
tracting parties for their consideration and acceptance. Only in the
case that the proposal is not accompanied by such an express request
may the Secretary-General proceed to such consultations as he deems
advisable before communicating the proposal to all the contracting
parties.
(ii) The Conference Procedure. According ‘to Art. 7 para. 3 of
of the Convention, a conference for the consideration of proposed
amendments shall be convened upon the request of at least one-third
of the contracting parties. The amendments shall then be adopted by
a two-thirds majority of the Governments present and voting.
13 Art. 6 of the Convention (emphasis mine).
14 However, according to Resolution 4 of the Final Act of the London Conference,
IMCO is requested “to consider the possibility of establishing from time to time
an ad hoe working Group with consultative and advisory functions composed of
experts … to assist the Secretary-General in carrying out the task devolving on
him under the Convention”.
15 Art. 7, para. 1 of the Convention.
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The amendments to the Annex are at no time and in no instance
subject to any decision of the Council or Assembly of IMCO. Under
the communicating procedure, they enter into force six months after
the date on which they have been accepted by the majority of the
contracting parties. Under the conference procedure, they enter into
force automatically six months after the date on which the Secretary-
General notifies the contracting parties of the amendments adopted
by the conference (Art. 7 para. 4).
Concluding remarks. This concept –
the abandonment of any
permanent technical committee for the preparation of regulatory
material, and the exclusion of any organ of IMCO from the adoption
of this material –
demonstrates the reluctance of the Contracting
States to confer regulatory powers on IMCO. This lack of regulatory
power makes IMCO quite distinct from other specialized agencies
which possess remarkable competence in the field of international
legislation.16
The future will show how successfully the new technique of co-
ordinated governmental action will operate instead of inter-govern-
mental action, in the formulation of international regulations.” There
are, in this writer’s opinion, some doubts as to the practicability and
efficiency of the new amending techniques, the communicating pro-
cedure and the conference procedure. It seems, for instance, quite
obvious that the proper functioning of the communicating procedure
for the amendment of the Annex will depend upon the self-restraint
of the contracting parties in submitting proposals to the Secretary-
General of IMCO. Furthermore, It would seem desirable that instead of
circulating all proposals to the contracting parties, the Secretariat
of IMCO should be in a position to eliminate proposals which do not
appear to be sufficiently mature for general acceptance, or of which
the wording needs improvement.
16 See the writer’s note on “International Legislation” in (1964) 2 Canadian
Yearboook of International Law 1,53-163.
17 Co-ordinated governmental action means that no organ of any international
organization takes part in the preparation and adoption of international regula-
tions. Inter-governmental action means that at least one organ of an international
organization takes part in the preparation and adoption of international regula-
tions. This may be done either on the international or supranational level.
