173. The Council recalled that, at the Twenty-second Session of the Conference (1983), some delegates expressed concern at the fact that Rule XII.9(a) of the General Rules of the Organization provided for a vote by secret ballot when there was the same number of candidates as places to be filled. They suggested that the election procedures be reviewed, in order to study the possibility of not proceeding to a secret ballot in such cases (for instance, for the election of the Independent Chairman of the Council). The Conference agreed "that the Council should review the present rules governing the voting procedures where there were the same number of candidates as places to be filled in the Conference or Council of the Organization with a view to speeding procedures and thus saving valuable time. The Council should report back to the Conference at its Twenty-third Session".2
174. The Council also recalled that, at its Eighty-fifth Session, it had agreed that the question raised by the Conference "be submitted for examination to the Committee on Constitutional and Legal Matters prior to its reporting on the matter, as requested, to the Twenty-third Session of the Conference".3
175. The Council noted that, in accordance with Rule XII.9(a) of the General Rules of the Organization, it was mandatory to hold a secret ballot with respect to (a) the > appointment of the Independent Chairman of the Council, (b) the appointment of the Director-General, (c) the admission of additional Member Nations or Associate Members, and (d) the election of Council Members. The Council realized that the main reason for the concern expressed by the Conference related to the election of the Independent Chair man of the Council and the election of Council Members, the latter election being by far the most time-consuming.
176. The Council shared the CCLM's view that the four cases in which it was mandatory to hold a secret ballot under Rule XII.9(a) related to highly sensitive matters, for which the secrecy provided for in the voting procedure was intended to afford Member Nations the possibility of expressing their choice without any constraint or embarassment. The Council considered that the advantage of such a method of voting should be weighed against the disadvantage of spending valuable time thereon. In this connection the Council noted that the time actually spent on the election of the Independent Chairman of the Council or on the election of Council Members did not appear to be excessive, if one took into account the length of the Conference sessions and the importance of the elections under consideration.
177. The Council noted that previously (1959, 1965, 1967) the Governing Bodies of the Organization had examined the advisability of amending Rule XII.9(a) and had concluded that it was preferable to maintain a secret ballot in the four cases enumerated in that Rule.
178. The Council further noted that Rule XII.9(a) could be suspended in accordance with Rule XLII.1, and that the Conference had done so at its Thirteenth Session (1965) in connection with the election of Council Members. The Council shared the CCLM's view that, although recourse to the suspension procedure should generally not be encouraged as it involved the risk of engendering a degree of uncertainty in the application of the General Rules of the Organization, suspending Rule XII.9(a) offered a possible solution if, in exceptional circumstances, a serious shortage of time should arise.
179. The Council therefore agreed with the CCLM's conclusion that the present provisions were adequate to protect the interests of Member Nations, and that no amendment to Rule XII.9(a) was necessary. However, the Council noted that the question of whether or not Rule XII.9(a) should be amended involved a policy decision that would have to be taken by the Conference. The Council also endorsed the proposals of the CCLM regarding the amendments that would be needed to Rule XII.9(a) if the Conference should decide that an amendment was desirable; Rule XII.9(a) could be amended by simply deleting the references to the Independent Chairman of the Council and the election of Council Members, in the first sentence of the said Rule.
180. Finally, the Council endorsed the CCLM's recommendation that the Spanish text of Rule XII.9(a) of the General Rules of the Organization be amended by the Conference, by deleting the words "por aclamación" and replacing them by the words "evidente consenso general", since only the latter terms corresponded entirely to the terms used in the English text ("by clear general consent"), and in the French text ("par consentement général manifeste"). The Council also endorsed the CCLM's recommendation that a similar amendment be made in the Spanish text of paragraph 17 of Rule XII; this amendment would consist in replacing the words "por aclamación" by "consenso general", so as to correspond with the terms "by general consent" and "par consentement général" in the English and French texts respectively.
181. The Council noted the reports of the Fifty-third and Fifty-fourth Sessions of the Finance Committee. As regards the construction of 70 rooms on the eighth floor of Building D, the Council was informed that some preliminary preparation of the site had taken place in the first week of September 1984 but no construction work had been initiated to date. Consequently, there would be further delay in completion of the rooms, which were now not expected to be ready for occupancy before late in 1986.
182. The latest proposal of the Director-General for a permanent solution to the problem of Headquarters accommodation was presented to the Council with the help of an audiovisual display. The Council was also informed that a model of the proposed enlargement had been shown to the Working Party established by the Conference in November 1981 , 5 to the President of Italy during his visit to FAO on World Food Day, 16 October 1984, and also to the Foreign Minister of Italy during his visit to FAO on 7 November 1984. A presentation was also made to the Prime Minister of Italy during the current session of the Council.
183. The proposals comprised immediate measures involving the reconstruction of Building E and the building of some additional structures within the Caracalla complex. They also comprised long-term measures involving the acquisition of land immediately adjacent to the south side of the Caracalla complex (on which St. Stephen's School and several shops now stood) and the construction of an office block thereon. The cost of reconstructing Building E and the building of some additional structures within the Caracalla complex (immediate measures) was estimated at US $12.7 million at April 1984 prices.
184. The representative of the Host Government announced that the new proposal would be examined very shortly by the Government at the highest level (a first meeting had been called for 3 December 1984). He assured the Council that the Host Government would make every effort to solve the Headquarters accommodation problem.
185. The Council expressed once more its concern over the lack of progress on this matter in recent years, particularly in view of the urgency of undertaking major repairs in the prefabricated Building E, endorsed the Director-General's latest proposal and welcomed the interest recently shown by the highest authorities of the Host Government in this proposal. In urging the Host Government to take, as a matter of urgency, all necessary measures for implementing the enlargement of the buildings in the Caracalla complex, the Council unanimously adopted the following resolution:
Resolution 3/86
HEADQUARTERS ACCOMMODATION
THE COUNCIL,
Noting with concern that since 1961 to this date the Organization's Headquarters units have been spread in two or more locations with resulting substantial additonal costs to Member Nations, including considerable loss of staff time in moving to and from the various locations;
Having been seized of the problem of finding suitable permanent Headquarters accommodation in one location continuously during the last seven years;
Noting further with concern that previous attempts by the Organization to assemble the Secretariat in one location, either by constructing a new building complex for the whole Secretariat in a new location or a new wing on land immediately adjacent to the main buildings in the Caracalla complex, have not met with the necessary approvals by all the Host Government authorities:
Endorses the Director-General's current proposals for a restructuring, enlargement and improvement of the buildings of the Caracalla complex which would allow all the Headquarters staff to be located on one site,
Welcomes the interest recently shown by the highest authorities of the Host Government in the latest plans prepared by the Organization, and the establishment by the Host Government of a Ministerial Coordinator and of a high-level Inter-ministerial Committee under the auspices of the Prime Minister's Office together with representation of FAO, to consider the proposals and decide urgently on all the necessary legal, administrative and financial measures at the appropriate levels for the implementation of these plans,
Considers that the adoption of the plan,the resolution of the legal, administrative and financial issues involved, and the initiation of implementation are vitally urgent in order to avoid unnecessary and mounting additional costs to Member Nations,
Urges those concerned in considering these matters to do so as urgently and constructively as possible, acting in concert, and to use any special procedures that are feasible and appropriate, so as to avoid delays,
Invites the Host Government to approve the plan and to take all the necessary measures to implement it as urgently as possible, so as to avoid as far as possible the impact of cost increases and inflation,
Requests the Director-General to report on progress made to the Eighty-seventh Session of the Council and to the Conference.
186. Recognizing that the issues related to the Organization's immunity from legal process in general and to certain specific consequences of this immunity not being fully recognized in Italy, the Council decided to examine the two items together.
187. For its consideration of these two items the Council had before it the Reports of the Forty-fourth and Forty-fifth Sessions of the Committee on Constitutional and Legal Matters 7 and the Reports of the Fifty-third and Fifty-fourth Sessions of the Finance Committee 8 and heard the introduction thereon of the Chairmen of the respective Commit tees. The Council also considered a document submitted by the Director-General in which, inter alia, the origins of the problems facing the Organization as regards its immunity in Italy were summarized and the Council was informed of developments since its Eighty- fourth Session (November 1983). 9
188. The Council noted that when it had last considered the question of the Organizations's immunity from legal process and immunity from measures of execution in Italy at its Eighty-fourth Session, it had found that little progress had been made to give effect to the Resolutions that it had adopted at its Eighty-second Session (November-December 1982) and its Eighty-third Session (June 1983). 10
189. The Council noted that the situation regarding the Organization's immunity from legal process in Italy had been brought to the attention of the Conference at its Twenty- second Session (November 1983). The Conference had expressed its serious concern at and strong dissatisfaction with the situation and had urged the Host Government to take expeditious measures to give effect to the Resolutions adopted by the Council, and, especially, to ensure that the Organization's immunity from every form of legal process was safeguarded in the future. 11
190. The Council further noted that since the Twenty-second Session of the Conference, the matter had been kept under review by the CCLM and the Finance Committee. It appeared from the Reports of the Forty-fourth and Forty-fifth Sessions of the CCLM and the Fifty- third and Fifty-fourth Sessions of the Finance Committee that no concrete measures had been taken by the Host Government to ensure the Organization's immunity from legal process and that two further actions had been brought against the Organization. Both Committees had expressed the view that this situation could only be remedied by the Host Government taking appropriate legislative action, and had also expressed their serious concern, since the Organization's situation remained extremely unsatisfactory.
191. The Council noted in particular, in connection with the problems relating to the Organization's immunity from legal process in general and immunity from measures of execution, that among the courses of action suggested by the CCLM was that the Council consider the desirability of the Conference requesting an advisory opinion from the ; International Court of Justice on the interpretation of sections 16 and 17 of the Head quarters Agreement.
192. The representative of the Host Government stated the official position of the Italian Government on the issue. The text of his declaration is reproduced in Appendix J.
193. The Council noted with appreciation the efforts of the Host Government to bring about a settlement out of court in the dispute between the landlords of Building F and the Organization, although no settlement had so far been reached.
194. The Council recognized that its interpretation of section 16 of the Headquarters Agreement was clearly at variance with the Corte di Cassazione's interpretation and considered that this serious problem should be resolved as soon as possible by appropriate legislative action on the part of the Host Government.
195. After also considering certain other questions arising out of relations with the Host Government,12 the Council unanimously adopted a Resolution given in paragraph 206 below.
196. The Council also endorsed the recommendations of the CCLM and Finance Committee and requested the Director-General to make such preparations as might be necessary to enable the Conference, if it so decided, to seek an advisory opinion from the International Court of Justice on the interpretation of sections 16 and 17 of the Headquarters Agreement, unless legislative action had been taken to safeguard FAO's immunity from legal process that would render an advisory opinion unnecessary.
197. While agreeing with the above consensus a few members expressed the hope that the matter could be settled directly between the Organization and the Host Government without recourse to an advisory opinion from the International Court of Justice.
198. The Council was informed that since the beginning of 1984, for the first time in the history of the Organization, the Ministry of Finance had been refusing or delaying the issue of duty-free import licences for the benefit of the staff despite the provisions of Article XII,Section 27 (j) (ii) of the Headquarters Agreement and of those detailed in an Exchange of Letters which was concluded in 1950 between the Host Government and the Organization. After considerable delay, the licences for 1984 were finally granted for the same quantities as in the past, following a direct intervention by the Minister of Foreign Affairs.
199. The Council was further informed that in 1972 the Host Government had unilaterally denounced, without prior warning, a second Exchange of Letters which had been concluded in 1956. It was also informed that protracted negotiations were initiated in 1974 but that no agreement had been reached to date. However, certain duty-free privileges and immunities continued to be granted in accordance with the original Exchange of Letters concluded in 1950. The Ministry of Finance wished, inter alia, to reduce the number of first-category staff (P5 and above) enjoying diplomatic privileges and immunities, as well as to exclude non-Italian staff in the second and third categories (P4 and below) from duty-free purchases of petrol, liquor and tobacco. The Council requested that the Host Government and the Organization conclude the negotiations as soon as possible.
200. The Council was informed that certain duty-free privileges which had been extended by the initiative of the Host Government to staff of Italian nationality from 1971 onward would no longer be granted after 1 January 1985 following a decision to that effect by the Host Government. In explaining this decision, the representative of the Host Government added that the extension of such privileges to Italian staff in 1971 was a generous gesture on the part of the Host Government at that time but it had now decided to withdraw them.
201. The Council noted that as a result of the withdrawal or reduction in privileges, the Organization would inevitably incur substantial extra costs in the form of upward adjustments of staff remuneration, since some duty-free privileges were taken into account in the calculation of such remuneration (salaries of General Service staff and post adjustments of Professional staff).
202. The Council expressed concern with the situation, particularly as regards additional costs to all Member Nations, and strongly opposed any reduction to non-Italian staff of those privileges which had been granted ever since the Organization was transferred to Rome in 1951. It urged the Host Government to take into consideration the financial and other implications which any reduction of privileges would have on the budget of the Organization and the considerable benefits to the Italian economy deriving from the presence of the Organization in Italy. The Council unanimously adopted a Resolution given in paragraph 206 below.
203. The Council recalled that the Ministry of Finance had created difficulties in connection with the issue of import licences for official purposes early in 1982 and following repeated interventions by the Director-General and the representative of the Host Government, the situation had returned to normal by May 1983. As a result of that previous negative attitude of the Ministry of Finance, the Organization had suffered losses totalling approximately US $35 000, as noted in the Council's Report of its Eighty-third Session.15
204. The Council was therefore strongly concerned to be informed that the Ministry of Finance of the Host Government had again stopped granting duty-free import licenses for equipment and materials for official use in the last three months of 1983, and that this was again causing extra costs to the Organization and disruption to its work.
205. The representative of the Host Government agreed that this was a real and serious problem, that the Host Government recognized that the Organization was entitled, in accordance with Article VII, Section 19(c) of the Headquarters Agreement, to import and export all equipment and materials it required for official purposes without limitation as to the quantity and the nature of the equipment. He added that further efforts were being made to convince the Ministry of Finance to follow this interpretation and that the problem was on the way to being resolved.
206. The Council reiterated its serious concern about the delays in obtaining licenses for the duty-free importation of official equipment and materials and that these delays were not only hindering the smooth operation of the Organization but were also resulting in additional costs that devolved on all Member Nations. It considered the attitude of the Ministry of Finance in this connection to be entirely unjustified and unacceptable and urged the Host Government to take immediate measures permanently to resolve this problem. In this connection, it unanimously adopted the following Resolution:
Resolution 4/86
RELATIONS WITH THE HOST GOVERNMENT
THE COUNCIL,
Having considered the Reports of the Fifty-third and Fifty-fourth Sessions of the Finance Committee and the Forty-fourth and Forty-fifth Sessions of the Committee on Constitutional and Legal Matters;
Noting that the Host Government has taken some steps to facilitate the settlement out of court of certain disputes between FAO and Italian contractors;
Noting also that the Host Government has informed the Council that it is elaborating a draft law to be submitted to Parliament in order to strengthen the Organization's immunity from measures of execution;
Noting, however, that no fully satisfactory solutions have yet been found to ensure the Organization's immunity from legal process and from measures of execution;
Noting further that for a number of years these problems have been discussed at length in the Finance Committee, the CCLM, the Council and the Conference and that early and practical solutions to these problems are now required;
Concerned about the serious delays in obtaining licences for the importation free of customs and other levies of articles which FAO has a right to import for its official purposes under Section 19 of the Headquarters Agreement, and that these delays not only hinder the smooth operation of the Organization, but also result in additonal costs to the Organization that devolve on all Member Nations;
Being aware that in negotiations with the Host Government on the interpretation and application of the Headquarters Agreement, the Host Government is adopting a position on the privileges and immunities accorded to the staff entailing the possible limitation of such privileges and immunities to certain categories of the staff;
Convinced that the Director-General should have the flexibility of action necessary to respond to or initiate steps that would resolve or mitigate these problems:
Strongly urges the Host Government:
to accelerate the adoption of legislative measures that would guarantee, in the future, the Organization's immunity from legal process including measures of execution,
to ensure that licences for the importation of articles required by the Organization for its official purposes are granted expeditiously so as not to hamper its work and cause additional costs to the Member Nations of the Organization,
to take into consideration, in the context of the negotiations on the inter pretation and application of the Headquarters Agreement, all the financial and other implications that its position may have for all Member Nations both now and in the future.
Invites the Director-General to consider, and to submit to the CCLM for further examination, the question of whether it would be desirable for the Organization to accept the services offered by the Host Government to defend the Organization's immunity in the Italian Courts, without cost to the Organization.
207. The Council was advised that the Director-General had invited the German Democratic Republic, a Non-Member State, to attend the Ad Hoc Consultation on Improved Animal Health Coordination in the European Region which had been held in Hungary in June 1984. The invitation had been issued in accordance with paragraphs B-l and B-2 of the "Statement of Principles relating to the Granting of Observer Status to Nations" .17
208. The Council took cognizance of the application for membership submitted by the Solomon Islands.
209. Pending a decision by the Conference on this application, and pursuant to Rule XXV.11 of the General Rules of the Organization (GRO) and paragraphs B-l, B-2 and B-5 of the "Statement of Principles relating to the Granting of Observer Status to Nations", the Council authorized the Director-General to invite the Solomon Islands to participate, in an observer capacity, at appropriate Council meetings as well as regional and technical meetings of the Organization of interest to it.
210. As provided for in Rule XXVI.4(a) of the General Rules of the Organization (GRO), the Council was advised that Ajmal Mahmood Qureshi had replaced Tanweer Ahmad as the representative of the Government of Pakistan for the Forty-seventh session of the Programme Committee.
211. As provided for in Rule XXVII.4(a) of the General Rules of the Organization (GRO), the Council was advised that Raphael Rabe had replaced Therre Clément Rajaona as the new representative of the Government of Madagascar on the Finance Committee.
212. The Council expressed its sincere thanks for the services of Tanweer Ahmad and Therre Clément Rajaona, and took note of the qualifications and experience of their replacements.
213. As requested by the Eighty-second Session of the Council, the Seventeenth Regional Conference for Asia and the Pacific examined the various regional commissions' activities and in particular the performance of the Commission on Farm Management.
214. The Regional Conference had noted the poor attendance at the Commission, had requested the Secretariat to make efforts to revitalize the Commission, and had urged Member Nations to take a more active interest in the Commission's activities. It had expressed the view that the Council should defer any decision on the abolition of the Commission on Farm Management until the Eighteenth Regional Conference had had the op portunity to review its renewed performance.
215. During the discussion by the Council, several members expressed their support for the continuation of the activities of the Commission on Farm Management in the region. The Council unanimously agreed to defer any decision regarding the abolition of the Com mission on Farm Management until it had received a report from the Eighteenth Regional Conference for Asia and the Pacific on the performance of the Commission in the inter vening period.
1 CL 86/5; CL 86/5(a); CL 86/PV/12; CL 86/PV/17.
2 C 83/REP, para. 371.
3 CL 85/REP, paras. 16 and 17.
4 CL 86/15; CL 86/4; CL 86/6; CL 86/PV/10; CL 86/PV/17.
5 C 81/REP, para. 333 - Resolution 14/81.
6 CL 86/PV/10; CL 86/PV/18.
7 CL 86/5; CL 86/5(a), paras. 12-31.
8 CL 86/4, paras. 73-80; CL 86/6, paras. 2.78-2.87.
9 CL 86/15, paras. 29-70.
10 CL 84/REP, paras. 123-127.
11 C 83/REP, paras. 342-345 and Appendix G.
12 See paragraphs 198 to 206.
13 CL 86/4, paras. 67-70; CL 86/6, paras. 2.73-2.77; CL 86/15, paras. 71-93; CL 86/PV/ll; CL 86/PV/18.
14 CL 86/4, paras. 71-72; CL 86/6, paras. 2.66-2.72; CL 86/15; CL 86/PV/11; CL 86/PV/18.
15 CL 83/REP, paras. 259-260.
16 CL 86/INF/8; CL 86/PV/15; CL 86/PV/18.
17 See Basic Texts, Volume II, Section L.
18 CL 86/PV/l; CL 86/PV/17.
19 CL 86/INF/9; CL 86/INF/9-Sup.1; CL 86/PV/15; CL 86/PV/18.
20 CL 86/17; CL 86/PV/15; CL 86/PV/18.
