Introduction

Adopting a convention, Entry into force, Accession, Amendment, Enforcement, Tacit

acceptance procedure
Introduction
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. (more)
Adopting a convention
This is the part of the process with which I! as an !rgani"ation is most closely involved. I! has si# main bodies
concerned with the adoption or implementation of conventions. The $ssembly and %ouncil are the main organs,
and the committees involved are the aritime &afety %ommittee, arine 'nvironment (rotection %ommittee, )egal
%ommittee and the *acilitation %ommittee. +evelopments in shipping and other related industries are discussed by
ember &tates in these bodies, and the need for a new convention or amendments to e#isting conventions can be
raised in any of them.
Entry into force
The adoption of a convention mar,s the conclusion of only the first stage of a long process. Before the convention
comes into force - that is, before it becomes binding upon -overnments which have ratified it - it has to be accepted
formally by individual -overnments.
Signature, ratification, acceptance, approval and accession
The terms signature, ratification, acceptance, approval and accession refer to some of the methods by which a &tate
can e#press its consent to be bound by a treaty.

Signature
%onsent may be e#pressed by signature where.
/ the treaty provides that signature shall have that effect0
/ it is otherwise established that the negotiating &tates were agreed that signature should have that effect0
/ the intention of the &tate to give that effect to signature appears from the full powers of its representatives or was
e#pressed during the negotiations (1ienna %onvention on the )aw of Treaties, 2343, $rticle 25.2).

$ &tate may also sign a treaty 6subject to ratification, acceptance or approval6. In such a situation, signature does
not signify the consent of a &tate to be bound by the treaty, although it does oblige the &tate 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 (1ienna %onvention on the )aw of Treaties, $rticle 27(a)).

Signature subject to ratification, acceptance or approval
ost multilateral treaties contain a clause providing that a &tate may e#press 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 &tate, but must be followed up by the deposit of an
instrument of ratification with the depositary of the treaty.

This option of e#pressing 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 &tate representative did not e#ceed their powers or instructions with regard to the
ma,ing of a particular treaty. The words 6acceptance6 and 6approval6 basically mean the same as ratification, but
they are less formal and non-technical and might be preferred by some &tates which might have constitutional
difficulties with the term ratification.
any &tates 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 re8uirements fulfilled before
entering into treaty commitments.

The terms for consent to be e#pressed by signature subject to acceptance or approval are very similar to ratification
in their effect. This is borne out by $rticle 29.5 of the 1ienna %onvention on the )aw of Treaties which provides that
6the consent of a &tate to be bound by a treaty is e#pressed by acceptance or approval under conditions similar to
those which apply to ratification.6
Accession
ost multinational treaties are open for signature for a specified period of time. $ccession is the method used by a
&tate to become a party to a treaty which it did not sign whilst the treaty was open for signature.
Technically, accession re8uires the &tate in 8uestion to deposit an instrument of accession with the depositary.
$rticle 2: of the 1ienna %onvention on the )aw of Treaties provides that consent by accession is possible where the
treaty so provides, or where it is otherwise established that the negotiating &tates were agreed or subse8uently
agreed that consent by accession could occur.
Amendment
Technology and techni8ues in the shipping industry change very rapidly these days. $s a result, not only are new
conventions re8uired but e#isting ones need to be ,ept up to date. *or e#ample, the International %onvention for the
&afety of )ife at &ea (&!)$&), 234; was amended si# times after it entered into force in 234: - in 2344, 234<, 2347,
2343, 23<2 and 23<=. In 23<9 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 %ontracting &tates, usually two thirds,
had accepted them. This normally meant that more acceptances were re8uired to amend a convention than were
originally re8uired to bring it into force in the first place, especially where the number of &tates which are (arties to a
convention is very large.

This percentage re8uirement in practice led to long delays in bringing amendments into force. To remedy the
situation a new amendment procedure was devised in I!. This procedure has been used in the case of
conventions such as the %onvention on the International >egulations for (reventing %ollisions at &ea, 23<5, the
International %onvention for the (revention of (ollution from &hips, 23<= and &!)$& 23<9, all of which incorporate
a procedure involving the 6tacit acceptance6 of amendments by &tates.

Instead of re8uiring that an amendment shall enter into force after being accepted by, for e#ample, two thirds of the
(arties, 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 (arties.

In the case of the 23<9 &!)$& %onvention, an amendment to most of the $nne#es (which constitute the technical
parts of the %onvention) is Adeemed to have been accepted at the end of two years from the date on which it is
communicated to %ontracting -overnments...B unless the amendment is objected to by more than one third of
%ontracting -overnments, or %ontracting -overnments owning not less than :; per cent of the worldBs gross
merchant tonnage. This period may be varied by the aritime &afety %ommittee with a minimum limit of one year.

$s was e#pected the 6tacit acceptance6 procedure has greatly speeded up the amendment process. $mendments
enter into force within 27 to 59 months, generally %ompared to this, none of the amendments adopted to the 234;
&!)$& %onvention between 2344 and 23<= received sufficient acceptances to satisfy the re8uirements for entry
into force.
Enforcement
The enforcement of I! conventions depends upon the -overnments of ember (arties.

%ontracting -overnments enforce the provisions of I! 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 -overnments.

In some conventions, certificates are re8uired to be carried on board ship to show that they have been inspected
and have met the re8uired standards. These certificates are normally accepted as proof by authorities from other
&tates that the vessel concerned has reached the re8uired standard, but in some cases further action can be ta,en.

The 23<9 &!)$& %onvention, for e#ample, states that 6the officer carrying out the control shall ta,e such steps as
will ensure that the ship shall not sail until it can proceed to sea without danger to the passengers or the crew6.
This can be done if 6there are clear grounds for believing that the condition of the ship and its e8uipment does not
correspond substantially with the particulars of that certificate6.

$n inspection of this nature would, of course, ta,e place within the jurisdiction of the port &tate. But when an
offence occurs in international waters the responsibility for imposing a penalty rests with the flag &tate.
&hould an offence occur within the jurisdiction of another &tate, however, that &tate can either cause proceedings to
be ta,en in accordance with its own law or give details of the offence to the flag &tate so that the latter can ta,e
appropriate action.

Cnder the terms of the 2343 %onvention >elating to Intervention on the Digh &eas, %ontracting &tates 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 ris, 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 &tate is
primarily responsible for enforcing conventions as far as its own ships and their personnel are concerned.
The !rgani"ation itself has no powers to enforce conventions.

Dowever, I! has been given the authority to vet the training, e#amination and certification procedures of
%ontracting (arties to the International %onvention on &tandards of Training, %ertification and Eatch,eeping for
&eafarers (&T%E), 23<7. This was one of the most important changes made in the 233: amendments to the
%onvention which entered into force on 2 *ebruary 233<. -overnments have to provide relevant information to
I!Bs aritime &afety %ommittee which will judge whether or not the country concerned meets the re8uirements of
the %onvention.

Relationship between Conventions and interpretation
&ome subjects are covered by more than one Treaty. The 8uestion then arises which one prevails. The 1ienna
%onvention on the )aw of Treaties provides in $rticle =; for rules regarding the relationship between successive
treaties relating to the same subject-matter. $nswers to 8uestions regarding the interpretation of Treaties can be
found in $rticles =2, =5 and == of the 1ienna %onvention on the )aw of Treaties. $ Treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their conte#t and in the
light of its object and purpose. Ehen a Treaty has been authenticated in two or more languages, the te#t is e8ually
authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a
particular te#t shall prevail.

niform law and conflict of law rules
$ substantive part of maritime law has been made uniform in international Treaties. Dowever, not every &tate is
(arty to all %onventions and the e#isting %onventions do not always cover all 8uestions 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.
I!" conventions
The majority of conventions adopted under the auspices of I! or for which the !rgani"ation is otherwise
responsible, fall into three main categories.
The first group is concerned with maritime safety0 the second with the prevention of marine pollution0 and the third
with liability and compensation, especially in relation to damage caused by pollution. !utside these major groupings
are a number of other conventions dealing with facilitation, tonnage measurement, unlawful acts against shipping
and salvage, etc.
Tacit acceptance procedure
The amendment procedures contained in the first %onventions to be developed under the auspices of I! were so
slow that some amendments adopted have never entered into force. This changed with the introduction of the 6tacit
acceptance6 procedure.

Tacit acceptance is now incorporated into most of I!Bs technical %onventions. It facilitates the 8uic, and simple
modification of %onventions to ,eep pace with the rapidly-evolving technology in the shipping world. Eithout tacit
acceptance, it would have proved impossible to ,eep %onventions up to date and I!Bs role as the international
forum for technical issues involving shipping would have been placed in jeopardy.

In the spring of 2347, I! - then still called I%!, the Inter--overnmental aritime %onsultative !rgani"ation -
celebrated the 5;th anniversary of the adoption of the I! %onvention. It should have been an occasion for some
congratulations. But all was not well. any of the !rgani"ationBs ember &tates were not happy with the progress
that had been made so far.

any were concerned about the !rgani"ationBs structure and its ability to respond to the changes ta,ing place in
shipping. In arch, 234<, the oil tan,er Torrey %anyon had gone aground off the coast of 'ngland, resulting in what
was then the worldBs biggest oil spill. I! was called upon to ta,e action to combat oil pollution and to deal with the
legal issues that arose. But would it be able to do soF

The general dis8uiet was summed up by %anada in a paper submitted to the 5;th session of the I! %ouncil in ay
2347. It stated that 6the anticipations of twenty years ago have not been fulfilled6 and went on to complain of the
effort re8uired by ember &tates in attending meetings and dealing with the technical problems raised by I!. The
paper was discussed by the %ouncil which agreed to establish a wor,ing group to prepare a draft statement of the
objectives of I! and an inventory of further objectives which the !rgani"ation could usefully fulfil in the field of
international maritime transport.

In Govember 2347 the wor,ing group reported bac, to the %ouncil. It outlined a list of activities, far broader than the
programmes underta,en by I! so far. This was approved by the %ouncil, which also agreed that I! needed to
improve its wor,ing methods.

The wor,ing group was as,ed to report to the %ouncil again at its 55nd session in ay 2343.This time it put forward
a number of proposals for improving I!Bs wor,ing methods, the most important of which concerned the procedures
for amending the various %onventions that had been adopted under I!Bs auspices.

The problem facing I! was that most of its %onventions could only be updated by means of the 6classical6
amendment procedure. $mendments to the 234; &!)$& %onvention, for e#ample, would enter into force 6twelve
months after the date on which the amendment is accepted by two-thirds of the %ontracting -overnments including
two-thirds of the -overnments represented on the aritime &afety %ommittee. This did not seem to be a difficult
target when the %onvention was adopted, because to enter into force the %onvention had to be accepted by only 2:
countries, seven of which had fleets consisting of at least 2 million gross tons of merchant shipping.

But by the late 234;s the number of (arties to &!)$& had reached 7; and the total was rising all the time as new
countries emerged and began to develop their shipping activities. $s the number of (arties rose, so did the total
re8uired to amend the %onvention. It was li,e trying to climb a mountain that was always growing higher and the
problem was made worse by the fact that -overnments too, far longer to accept amendments than they did to ratify
the parent %onvention.

The %ouncil approved the wor,ing groupBs proposal that 6it would be a useful first step to underta,e a comparative
study of the conventions for which I! is depositary and similar instruments for which other embers of the Cnited
Gations family are responsible.6 This proposal was endorsed by the 4th regular session of the I! $ssembly in
!ctober 2343 and the study itself was completed in time to be considered by the $ssembly at its <th session in
23<2.

It e#amined the procedures of four other CG agencies. the International %ivil $viation !rgani"ation (I%$!), the
International Telecommunications Cnion (ITC), the Eorld eteorological !rgani"ation (E!) and the Eorld Dealth
!rgani"ation (ED!).

It showed that all of these organi"ations were able to amend technical and other regulations. These amendments
became binding on ember &tates without a further act of ratification or acceptance being re8uired.
!n the other hand, I! had no authority to adopt, let alone amend conventions. Its mandate allowed it only to
6provide for the drafting of conventions, agreements or other instruments and to recommend these to -overnments
and to intergovernmental organi"ations and to convene such conferences as may be necessary.6 $rticle 5 of the
I! %onvention specifically stated that I!Bs functions were to be 6consultative and advisory6.

The !rgani"ation could arrange a conference - but it was up to the conference to decide whether the %onvention
under discussion should or should not be adopted and to decide how it should be amended. The study concluded
that 6any attempt to bring I! procedure and practice into line with the other organi"ations would, therefore, entail a
change either in the constitutional and institutional structure of the !rgani"ation itself or in the procedure and
practice of the diplomatic conferences which adopt the conventions of I!.

The first might involve an amendment to the I! %onvention itself. The second might re8uire that diplomatic
conferences convened by I! should grant greater power to the organs of I! in regard to the review and revision
of the instruments.

The study was discussed at length by the $ssembly. %anada pointed out that the amendments adopted to the 234;
&!)$& %onvention in 2344, 234<, 2347 and 2343 had failed to enter into force and this 6sufficed to show that I!
would henceforth have to tac,le serious institutional problems.6 $ note submitted to the conference by %anada
stated that 6unless the international maritime community is sufficiently responsive to these changed circumstances,
&tates will once again revert to the practice of unilaterally deciding what standards to apply to their own shipping and
to foreign flag shipping visiting their ports.6

The result was the adoption of resolution $.593(1II) which referred to the need for an amendment procedure 6which
is more in ,eeping with the development of technological advances and social needs and which will e#pedite the
adoption of amendments.6 It called for the )egal %ommittee and aritime &afety %ommittee to prepare draft
proposals for consideration by the 7th $ssembly.

$ growing urgency was added by the fact that I! was preparing a number of new conventions for adoption during
the ne#t few years. %onferences to consider a new %onvention on the International >egulations for (reventing
%ollisions at &ea and an International %onvention for &afe %ontainers were both scheduled for 23<5, a major
%onvention dealing with the (revention of arine (ollution from &hips for 23<= and a conference to revise &!)$&
was scheduled for 23<4. $ll of these treaties re8uired a new, easier amendment procedure than the traditional
method.

The &% discussed the amendment 8uestion at its 5:th session in arch 23<5. $ wor,ing group was formed to
discuss the matter in detail and concluded that at current rates of acceptance the re8uisite 6two-thirds6 target
needed to amend &!)$& 234; 6will not be achieved...for many years, possibly never.6 oreover, any future
amendments would almost certainly suffer the same fate. This would include any amendments intended to improve
the amendment procedure itself.

The wor,ing group reported. 6It follows that the only realistic way of bringing an improved amending procedure into
effect within a reasonable period of time is to incorporate it into new or revised technical conventions.
$ few wee,s later, the )egal %ommittee held its 25th session. $mong the documents prepared for the meeting was
a report on discussions that had ta,en place at the &% and a detailed paper prepared by the &ecretariat. The
paper analysed the entry into force and amendment processes of various I! %onventions and referred to two
possible methods that had been considered by the $ssembly, for speeding up the amendment procedure.
$lternative I was to revise each %onvention so that greater authority for adopting amendments might be delegated to
the appropriate I! organs. $lternative II was to amend the I! %onvention itself and give I! the power to
amend %onventions.

The study then considered $lternative I in greater detail. The main reason why amendments too, so long to enter
into force was the time ta,en to gain acceptance by two-thirds of %ontracting -overnments. !ne way of reducing
this period would be by 6specifying a date ...of entry into force after adoption by the $ssembly, unless that date of
amendment is e#plicitly rejected by a certain number or percentage of %ontracting -overnments.6 The paper said
that this procedure 6has the advantage that all %ontracting -overnments would be able to advance the preparatory
wor, for implementing the amended regulations and the industry would be in a position to plan accordingly.6

The %ommittee established a wor,ing group to consider the subject and prepared a preliminary study based on its
report, which again referred to the disadvantages of the classical amendment system. The study continued. 6The
remedy for this, which has proved to be wor,able in practice, in relation to a number of conventions, is what is
,nown as the BtacitB or BpassiveB acceptance procedure. This means that the body which adopts the amendment at
the same time fi#es a time period within which contracting parties will have the opportunity to notify either their
acceptance or their rejection of the amendment, or to remain silent on the subject. In case of silence, the
amendment is considered to have been accepted by the party...6.

The tacit acceptance idea immediately proved popular. The %ouncil, at its meeting in ay, decided that the ne#t
meeting of the )egal %ommittee should consist of technical as well as legal e#perts so that priority could be given to
the amendment issue. The %ommittee was as,ed to give particular attention to tacit acceptance.

The idea was given non-governmental support by the International %hamber of &hipping, which had consultative
status with I! and submitted a paper stating that the lac, of an effective amendment procedure created
uncertainties and was detrimental to effective planning by the industry. The classical procedure had also
encouraged some governments to introduce unilateral legislation that, however well intentioned, was 6seriously
disruptive to international shipping services.6 The paper said that if other -overnments did the same 6 the disruption
to international shipping and the world trade which it serves would become increasingly severe. &uch unilateral
action stri,es at the purpose of I!.6

By the time the )egal %ommittee met for its 29th session in &eptember 23<5, there was general agreement that tacit
acceptance offered the best way forward. !ther ideas, such as amending the I! %onvention itself, had too many
disadvantages and would ta,e too long to introduce. There was some concern about what would happen if a large
number of countries did reject an amendment and the %ommittee members agreed that tacit acceptance should
apply only to the technical content of %onventions, which was often contained in anne#es. The non-technical articles
should continue to be subject to the classical (or 6positive6) acceptance procedure.
The %ommittee also generally agreed that alternative procedures for amending the technical provisions should be
retained but it did not reach consensus on another issue. should amendments be prepared and adopted by an
appropriate I! body, such as the aritime &afety %ommittee - or by %ontracting (arties to the %onvention
concernedF This was an important point at the time, since many %ontracting (arties to I! %onventions were not
yet embers of I! itself and might object to treaties they had ratified being amended without them even being
consulted.

This issue was still unsettled when the %onference on >evision of the International >egulations for (reventing
%ollisions at &ea opened in !ctober 23<5. The purpose of the conference was to update the %ollision >egulations
and to separate them from the &!)$& %onvention (the e#isting regulations were anne#ed to &!)$& 234;).

The amendment procedure is contained in $rticle 1I. $mendments to the %ollision >egulations adopted by the &%
(by a two-thirds majority) have to be communicated to %ontracting (arties and I! ember &tates at least si#
months before being considered by the $ssembly. If adopted by the $ssembly (again by a two-thirds majority), the
amendments enter into force on a date determined by the $ssembly unless more than one third of %ontracting
(arties notify I! of their objection. !n entry into force, any amendment shall 6for all %ontracting (arties which have
not objected to the amendment, replace and supersede any previous provision to which the amendment refers.6

)ess than two months later, on 5 +ecember 23<5 a conference held in -eneva adopted the International
%onvention for &afe %ontainers, $rticle H of which contains procedures for amending any part or parts of the
%onvention. The procedure is the traditional 6positive6 acceptance system, under which amendments enter into
force twelve months after being adopted by two-thirds of %ontracting (arties. Dowever, $rticle HI contains a special
procedure for amending the technical anne#es which also incorporates tacit acceptance. The procedure is slightly
different from that used in the %ollision >egulations, one difference being that the amendments can be adopted by
the &% 6to which all %ontracting (arties shall have been invited to participate and vote.6 This answered the
8uestion of how to ta,e into account the interests of (arties to %onventions that were not ember &tates of I!.

The ne#t %onvention to be considered was the International %onvention for the (revention of (ollution from &hips
($>(!)), which was successfully adopted in ay 23<=. It, too, incorporated tacit acceptance procedures for
amending the technical anne#es. In the meantime, I! was preparing for a new &!)$& convention. This was
considered necessary because none of the amendments adopted to the 234; version had entered into force and did
not appear li,ely to do so in the near future. The 2344 )oad )ines %onvention also contained a classical amendment
procedure and the intention was to combine the two instruments in a new %onvention, which was scheduled to be
considered in 23<4.

The &% discussed this proposal at its 54th session in !ctober-Govember, but it was clear that this would be a
daunting and time-consuming tas,. The combined instrument might be a good idea for the future - but the real
priority was to get the amendments to &!)$& 234; into force as 8uic,ly as possible and to ma,e sure that future
amendments would not be delayed. $ wor,ing group was set up to consider the various alternatives, but opinion
began to move in favour of a proposal by the Cnited Iingdom that I! should concentrate on an interim %onvention
designed to bring into force the amendments adopted since 234;. The new %onvention, it was suggested, would
consist of the 234; te#t with the addition of a tacit acceptance amendment procedure and the addition of
amendments that had already been adopted.

$nother advantage, the Cnited Iingdom pointed out, was that the conference called to adopt the revised %onvention
6might be held considerably earlier than 23<4 since comparatively little preparation would be needed.6 The subject
was discussed again at the &%Bs 5<th session in the spring of 23<= and, although some delegations wanted a
more comprehensive revision, others felt that the wor,load would be so great that the conference would be seriously
delayed. By a vote of 25 in favour and four abstentions, the %ommittee decided to call a conference with limited
scope, as proposed by the Cnited Iingdom.

!n 52 !ctober, 23<9, the International %onference on &afety of )ife at &ea opened in )ondon and on 2 Govember a
new &!)$& %onvention was adopted, which incorporated the tacit acceptance procedure.

The tacit acceptance amendment procedure has now been incorporated into the majority of I!Bs technical
%onventions and has been e#tended to some other instruments as well. Its effectiveness can be seen most clearly
in the case of &!)$& 23<9, which has been amended on many occasions since then. In the process, the
%onventionBs technical content has been almost completely re-written.