CL 131/5  |
| CL 131/5 |
Hundred and Thirty-first Session |
Rome, 20-25 November 2006 |
REPORT OF THE EIGHTIETH SESSION OF THE COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS (CCLM) |
II. ELECTION OF CHAIRPERSON AND VICE-CHAIRPERSON
III. REVISED STATUTES OF THE WESTERN CENTRAL ATLANTIC FISHERY COMMISSION (WECAFC)
IV. STREAMLINING OF THE MEMBERSHIP RULES OF THE OPEN COMMITTEES OF THE FAO COUNCIL
V. REPRESENTATION OF THE NEAR EAST REGION IN THE FINANCE COMMITTEE
VI. ACCESS BY MEMBERS TO REPORTS OF THE OFFICE OF THE INSPECTOR GENERAL
Belgium, Czech Republic, Gabon, Guatemala, Philippines, Syrian Arab Republic and United States of America.
2. The Committee elected Mr. John Cornet d’Elzius (BELGIUM) as Chairperson, and Mr. Noel D. De Luna (PHILIPPINES) as Vice-Chairperson.
4. The CCLM noted that the WECAFC, following the recommendations made at the Twenty-ninth Session of the FAO Conference in November 1997 and within the context of a general review of the FAO statutory bodies (Resolution 13/97), decided, at its Ninth Session held in Castries, Saint Lucia, in September 1999, to abolish two of its subsidiary bodies, namely the Working Party on Assessment of Marine Fishery Resources and the Working Party on Fishery Economics and Planning. On that occasion, WECAFC addressed also the question of the restructuring of WECAFC taking into consideration that the FAO Conference Resolution 13/97 reflected the desire that statutory bodies with a regional focus should be more responsive to the needs of their Members. With regards to the legal and statutory perspective, WECAFC unanimously recommended that it be maintained as a body under Article VI of the FAO Constitution.
5. The CCLM took further note that the restructuring of WECAFC was discussed again at the Tenth Session of WECAFC (Bridgetown, Barbados, October 2001), and at the Eleventh Session of WECAFC (St George’s, Grenada, 21-24 October 2003). At that last Session WECAFC established an Intersessional Working Group on the Strengthening of WECAFC to explore the feasibility of strengthening regional fisheries management as well as the costs, benefits and other implications of such action.
6. The Working Group held its first meeting in Punta Cana, Dominican Republic, in July 2005. The second meeting was held in Port of Spain, Trinidad, in October 2005, immediately before the Twelfth Session of WECAFC. The Working Group agreed that WECAFC should remain an Article VI body under the FAO Constitution and should not be converted into an Article XIV body, and adopted the draft Revised Statutes of WECAFC.
7. Subsequently, during its Twelfth Session (Port of Spain, Trinidad, October 2005), WECAFC approved the draft Revised Statutes and agreed that the next step would be to submit them to the next session of the FAO Council for approval.
8. The CCLM considered the attached draft Council Resolution as well as the Revised Statutes of WECAFC, attached to this report as Appendix I, and found them to be in conformity with the Basic Texts of the Organization and in proper legal form and recommended that the Revised Statutes be submitted to the Council, at its Hundred and Thirty-first Session in November 2006, for approval.
9. The CCLM considered document CCLM 80/3-Rev.1 entitled “Streamlining of the Membership Rules of the Open Committees of the FAO”. On this issue, it noted that, within the framework of the preparation of the Revised Programme of Work and Budget 2006-2007, the Director-General mandated the Inter-Departmental Working Group on Council Committees to review existing arrangements of five Committees of the Council (the Committee on Commodity Problems; the Committee on Fisheries; the Committee on Forestry; the Committee on Agriculture; and the Committee on World Food Security) established under the provisions of Article V-6 of the FAO Constitution, and which are often referred to as “the Open Committees” in that their membership is not restricted to a set number of countries.
10. With respect to membership to the above mentioned Committees, the CCLM noted that the FAO Basic Texts (Parts G, H, I, J and K) provide specific Rules of Procedures for each of them regulating, in particular “Sessions” and “Attendance”, and that such Rules are drafted in a similar way to provide that these Committees “shall be composed of those Member Nations which notify the Director-General in writing of their desire to become Members of the Committee and of their intention to participate in the work of the Committee” and that “the notification... may be made at any time and membership acquired on the basis thereof shall be for a biennium...”. On this issue, the CCLM noted that the Inter-Departmental Working Group on Council Committees concluded that the biennial rule of notification of Membership resulted in cumbersome and time-consuming administrative processes, without offering any added value to the substantive work of the Committees.
11. The CCLM was of the opinion that, while there had to be formal recognition of the effective presence of Members at the meetings of the Committees to avoid the validity of the deliberations being questioned, on the other hand it was equally evident that the present system based on expiry of Membership at the end of each biennium places an administrative burden on Permanent Representatives, Government Offices and the Secretariat. Reducing this burden would significantly contribute to efficiency savings in governance.
12. The CCLM noted that allowing Membership to be carried over from one biennium to the next would, as an important consequence, generate a sufficient number of Members to produce a feasible quorum. It also concluded that the principle of loss of membership after failure to attend two consecutive sessions should be introduced. In this respect, the CCLM observed that Rule XXII.7 of the General Rules of the Organization governing Membership of the FAO Council provides that “A Member of the Council shall be considered to have resigned if ... it has not been represented at two consecutive sessions of the Council.”
13. The CCLM observed that, in practical terms, Members would submit written notification to the Director-General of their intention to participate in the work of one or more “Open Committee(s)” of the Council, and that their membership to a specified Committee would remain valid as long as the concerned Member does not fail to attend two consecutive sessions of that Committee, or notify its intention to withdraw.
14. The CCLM was of the opinion that an amendment reflecting such consideration should be made to each of the pertinent Membership Rules. It also suggested that the notification forms would still be required in the first biennium in which the proposed rules became operational, in order to establish the initial membership of each Open Committee.
15. The CCLM recommended that the draft amended rules, attached to this report as Appendix II, be submitted to the Council at its Hundred and Thirty-first Session in November 2006 for endorsement and, subsequently, to the Conference at its Thirty-fourth Session in 2007 for adoption.
16. The CCLM recalled that the Council, at its Hundred and Twenty-ninth Session in November 2005, considered the issue of the Representation of the Near East Region in the Finance Committee, an item that had been added to the Agenda of the Council at the request of the Chair of the Near East Region. At that Session, the Council "asked the regional groups to hold informal consultations in order to allow the Committee on Constitutional and Legal Matters to consider the matter and make recommendations to the Council at its session of November 2006". (CL 129/REP, paragraph 66).
17. The CCLM took note that informal consultations among the regional groups were initiated but that further time was needed to reach a common position. Consequently, the CCLM postponed the consideration of the matter to its next Session.
18. The Committee considered document CCLM 80/5 entitled “Access by Members to reports of the Inspector-General”. The Committee noted that the document included, as an appendix, a paper prepared for the Finance Committee on the same subject matter and that an extract of the report of the 115th Session had been made available to it. At its 113th Session in May 2006, the Finance Committee had requested a paper on potential future availability of internal audit reports to Members. In that context, reference was made to General Assembly resolution 59/272 of 23 December 2004 under the terms of which “original versions of the reports of the Internal Oversight Services not submitted to the General Assembly are, upon request, made available to any Member State”. The General Assembly also decided that “when access to a report would be inappropriate for reasons of confidentiality or the risk of violating the due process rights of individuals involved in Office of Internal Oversight investigations, the report may be modified or withheld in extraordinary circumstances, at the discretion of the Under-Secretary-General for Internal Oversight Services, who will provide the reasons for this to the requesting party”. The CCLM noted further that the submission to the Finance Committee provided detailed information on the matter, seen in the context of the general oversight framework of FAO, as well as information on recent practice at the United Nations and concluded that, in event that the Finance Committee should be of the view that a similar initiative should be implemented in FAO, the conditions of implementation of the procedure should be reviewed by the CCLM.
19. The CCLM noted that the Finance Committee, at its 115th Session, had reached a consensus to recommend to the Council that final audit reports be made available to Members on request, subject to such views as the CCLM might provide, especially as concerns information that Members might consider restricted in accordance with their legislation. As regards, more specifically, investigation reports, the Committee noted that further detailed guidance from the CCLM would be required, in light of various concerns expressed by some Members and related considerations, including the criteria already established by the United Nations for the modification or withholding of reports, so that a recommendation could be made to the Council. In addition, the CCLM noted, as reflected in document CCLM 80/5 following consultation by the Legal Office and the Office of the Inspector General with counterpart offices of all other organizations of the United Nations system, that while the criteria formulated by the Office of Internal Oversight Services of the United Nations could constitute a useful reference, a number of additional concerns had been expressed in relation to the implementation of the procedure and should be duly reflected in the criteria to be followed at FAO. These criteria would apply to all reports of the Office of the Inspector General, irrespective of their qualification as an audit or investigation report.
20. Having regard to all information available to it, as well as the fact that a recently-concluded “Comprehensive Review of Governance and Oversight within the United Nations, Funds, Programmes and Specialized Agencies” had not yet been examined by FAO and its implications assessed, the CCLM agreed to recommend the following interim criteria, to be applied in respect of requests for reports of the Office of the Inspector General:
“INTERIM CRITERIA FOR MODIFYING OR WITHHOLDING REPORTS
ISSUED BY THE OFFICE OF THE INSPECTOR GENERAL
1. The Inspector General will endeavour to provide original reports, which are issued internally, to Members upon request. Prior to acceding to a request from a Member, the Inspector General will consult the Legal Office, the Human Resources Division and such other division he/she deems fit in the light of the circumstances.
2. The Inspector General may withhold or modify reports, in accordance with the following criteria:
(a) Reports may be withheld from Members when:
(i) the report contains information which is, or may be considered to be, of a restricted nature under national legislation of a Member, subject however to acceptance by this Member that the report may be released and under the terms of such acceptance;
(ii) it appears from the terms of the request, or from the circumstances surrounding the request, that confidentiality cannot be guaranteed or that the request pursues an objective incompatible with the status of the Organization;
(iii) the report cannot be modified sufficiently to protect the identity of a complainant or other person or entity to whom confidentiality has been promised by the Office of the Inspector General;
(iv) the report is an interim report and not a final report;
(v) although the report is a final one, proceedings in relation to administrative action taken on its basis are still ongoing, either before the Appeals Committee or before the Administrative Tribunal of the International Labour Organization, or all possibilities of appeal against such administrative action have not yet been exhausted;
(vi) the matter reported, or related matters, are still under investigation by the Office of the Inspector General, by other body or organization of the United Nations system, or by national authorities;
(vii) the report has been withdrawn by the Office of the Inspector General;
(viii) the disclosure of the report may cause direct and serious harm to a person;
(ix) without prejudice to the general nature of paragraph 3, there is any important reason which the Inspector General will communicate to the requesting Member.
(b) Reports may be modified before providing to a Member by:
(i) removing names and other terms which will reveal the identity of a complainant or a cooperating witness;
(ii) removing names and other terms which will reveal the identity of a subject of investigation who has been cleared of the allegations;
(iii) removing the names and other terms which will reveal the identity of persons or entities to whom promises of confidentiality have been made;
(iv) removing the identifiers or others, whether persons or entities, where it is in the best interest of the investigation so to do;
(v) adding information adduced since the preparation of the report which clarifies or corrects information in the report, or which addresses the findings or recommendations of the report.
3. Under all circumstances, the Inspector-General shall provide to the requesting Member the reasons for which a report is withheld or modified”.
21. The CCLM expressed the view that such criteria should be of an interim nature. The CCLM recommended to the Council that the Office of the Inspector-General and the Legal Office should monitor the implementation of the criteria in the light of the experience gained with a view to allowing the CCLM to revise them in future sessions, as appropriate.
22. The CCLM considered that paragraph 2(a)(ix) of the proposed criteria involved both legal and policy issues and therefore should be left for consideration by the Council.
23. The CCLM noted that the Council, at its Hundred and Twenty-ninth Session in November 2005, while recognizing the importance of the well-established legal principle that the personal status of staff members for purposes of FAO’s entitlements is determined by reference to the law of the nationality of the staff member concerned, had requested the CCLM to review further some aspects of the proposal and to report to it at its regular Session in November 2006.
24. The CCLM was provided a detailed overview of past consideration of the matter since its 75th Session in October 2003. The CCLM was informed that two judgments had been delivered by the Administrative Tribunal of the International Labour Organization on 12 July 2006, concluding that the respondent organization was wrong in refusing to recognize the status of spouse to persons having entered into a life partnership with staff members. The cases were sent back to the respondent organization for consideration of the complainants’ rights. The CCLM was also informed that a claim against FAO for spousal benefits was sub judice before the Administrative Tribunal, and a judgment was expected to be delivered early 2007.
25. The CCLM was informed that it would receive a detailed presentation of the outcome of the case, at its forthcoming session, in Spring 2007. Without in any possible way prejudging the outcome of the case, the CCLM noted that the Organization would have to apply any conclusions of the judgment to any other staff members in the same conditions of fact and law as the complainant.
Posting of documents on the WEB
26. One member inquired about the possibility of posting CCLM documents on the FAO web site, in line with the practice of other Committees. The Secretariat explained that, in accordance with Rule XXXIV of the General Rules of the Organization, “the meetings of the Committee shall be held in private, unless otherwise determined by the Committee.” This provision, seen together with the confidential or sensitive nature of a number of issues dealt with by the CCLM, had led to the present practice whereby CCLM documents are distributed to the Members of the CCLM and to any Member upon request, but not posted publicly on the FAO web site. With this consideration in mind, the CCLM endorsed the proposal that CCLM documents would, in future, be posted on the FAO web site with the exclusion of those which the Legal Office would consider of a confidential character. In such cases, the Legal Office would inform the CCLM at its relevant session, of the reasons for such confidentiality.
Tribute to Mr. Luis M. Bombín on his retirement
27. The CCLM was informed that Mr. Luis M. Bombín, Secretary of the CCLM from February 1995, would be retiring from the Organization. The CCLM wished to place on record its deep appreciation for the outstanding services provided by Mr. Bombín to the CCLM and wished him the greatest success in his future endeavours.
DRAFT COUNCIL RESOLUTION AND REVISED STATUTES
OF THE WESTERN CENTRAL ATLANTIC FISHERY COMMISSION (WECAFC)
DRAFT COUNCIL RESOLUTION .../...
THE COUNCIL,
RECALLING Resolution 4/61 of 1973 by which it established the Western Central Atlantic Fishery Commission (WECAFC) under Article VI-1 of the FAO Constitution and promulgated its Statutes,
Further RECALLING Resolution 3/74 of 1978 by which it amended the Statutes of the Western Central Atlantic Fishery Commission (WECAFC),
TAKING INTO CONSIDERATION that the Western Central Atlantic Fishery Commission (WECAFC), at its Twelfth Session (Port of Spain, Trinidad, October 2005), unanimously agreed on a revised text of its Statutes and invited the Council to approve it with a view to strengthening WECAFC to promote effective conservation, management and development of living marine resources throughout the Western Central Atlantic region,
DECIDES to approve the revised Statutes of the Western Central Atlantic Fishery Commission (WECAFC), as follows:
1. General Objective of the Commission
Without prejudice to the sovereign rights of coastal States, the Commission shall promote the effective conservation, management and development of the living marine resources of the area of competence of the Commission, in accordance with the FAO Code of Conduct for Responsible Fisheries, and address common problems of fisheries management and development faced by Members of the Commission.
2. General Principles
a. The Commission shall have due regard for and promote the application of the provisions of the FAO Code of Conduct on Responsible Fisheries and its related instruments, including the precautionary approach and the ecosystem approach to fisheries management.
b. The Commission shall ensure adequate attention to small-scale, artisanal and subsistence fisheries.
c. The Commission shall coordinate and cooperate closely with other relevant international organizations on matters of common interest.
3. Area of Competence
The Commission's area of competence shall be all marine waters of the Western Central Atlantic bounded by a line drawn as follows:
From a point on the coast of South America at 10o 00'S latitude in a northerly direction along this coast past the Atlantic entry to the Panama Canal; thence continue along the coasts of Central and North America to a point on this coast at 35o 00'N latitude; thence due east along this parallel to 42o 00' W longitude; thence due north along this meridian to 36o 00'N latitude; thence due east parallel to 40o 00'W longitude; thence due south along this meridian to 5o 00'N latitude; thence due east along this parallel to 30o 00'W longitude; thence due south along this meridian to the equator; thence due east along the equator to 20o 00’W longitude; thence due south along this meridian to 10o 00'S latitude; thence due west along this parallel to the original point at 10o 00'S latitude on the coast of South America.
4. Species
The Commission shall cover all living marine resources, without prejudice to the management responsibilities and authority of other competent fisheries and other living marine resources management organizations or arrangements in the area.
5. Membership
The Commission shall be composed of such Members and Associate Members of the Organization that are coastal States, whose territories are situated wholly or partly within the area of the Commission or States whose vessels engage in fishing in the area of competence of the Commission and that notify in writing to the Director-General of the Organization of their desire to be considered as members of the Commission.
6. Functions of the Commission
The Commission shall have the following functions and responsibilities:
a. to contribute to improved governance through institutional arrangements that encourage cooperation amongst members;
b. to assist its members in implementing relevant international fisheries instruments, in particular the FAO Code of Conduct for Responsible Fisheries and its related International Plans of Action;
c. to help fishery managers in the development and implementation of fishery management systems that take due account of environmental, social, economic and cultural concerns;
d. to keep under ongoing review the state of the fishery resources in the area and the related industries and promote the interchange of related information;
e. to promote, coordinate and, as appropriate, organize or undertake research related to the living marine resources in the area of competence of the Commission, including on the interactions between fisheries and the ecosystem, and design programmes required for this purpose;
f. to promote, coordinate and, as appropriate, undertake the collection, exchange and dissemination of statistical, biological, environmental and socio-economic data and other marine fishery information as well as its analysis or study;
g. to provide the necessary support and advice to enable Members to ensure that fishery management decisions are based on the best available scientific evidence;
h. to provide advice on management measures to member governments and competent fisheries organizations;
i. to provide advice on monitoring, control and surveillance, and to promote cooperation on these matters, including joint activities, especially as regards issues of a regional or sub-regional nature;
j. to promote, coordinate and, as appropriate, strengthen the development of institutional capacity and human resources, particularly through education, training and extension activities in the areas of competence of the Commission;
k. to promote and encourage the utilization of the most appropriate fishing craft, gear, fishing techniques and post harvesting technologies in accordance with the FAO Code of Conduct for Responsible Fisheries;
l. to facilitate trade in fish and fish products by promoting the implementation of internationally accepted sanitary and phytosanitary standards;
m. to promote and facilitate harmonizing of relevant national laws and regulations, and compatibility of conservation and management measures;
n. to assist its Members in and facilitate, as appropriate and upon their request, the conservation, management and development of transboundary and straddling stocks under their respective national jurisdictions;
o. to assist, as appropriate, its Members in preventing and, upon request of the interested parties, resolving fisheries disputes;
p. to promote liaison between its members and all competent institutions within the area served by the Commission and adjacent waters;
q. to seek funds and other resources to ensure the long-term operations of the Commission and establish, as appropriate, a trust fund for voluntary contributions to this end;
r. to serve as a conduit of independent funding to its members for initiatives related to conservation, management and development of the living resources in the area of competence of the Commission;
s. to draw up its plan of work;
t. to carry out such other activities as may be necessary for the Commission to achieve its objectives, as defined above.
7. Institutions
1. Meetings of the Commission shall be held at least once every two years.
2. The Commission may establish, on an ad hoc basis, such subsidiary bodies as it deems necessary for the accomplishment of its task, and in particular to deal with special problems arising in subdivisions of its area of competence.
3. The establishment of any subsidiary body shall be subject to the determination by the Director-General that the necessary funds are available in the relevant chapter of the budget of the Organization. Before taking any decision involving expenditure in connection with the establishment of subsidiary bodies, the Commission must have before it a report from the Director-General on the administrative and financial implications thereof.
4. The Secretary of the Commission shall be appointed by the Director-General and shall be administratively responsible to him.
5. Any financial operations relating to the Commission and its subsidiary bodies shall be governed by the appropriate provisions of the Financial Regulations of the Organization. Expenses incurred by representatives of Members of the Commission, their alternates or advisers, when attending sessions of the Commission or its subsidiary bodies, as well as the expenses incurred by observers at sessions, shall be borne by the respective governments or organizations.
8. Reporting
The Commission shall submit to the Director-General reports on its activities and recommendations at such appropriate intervals as to enable the Director-General to take them into consideration when preparing the draft Programme of Work and Budget of the Organization and other submissions to the Conference, Council or Committees of the Council. The Director-General shall bring to the attention of the Conference through the Council recommendations adopted by the Commission which have policy implications or which affect the programme or finances of the Organization. Copies of each report of the Commission shall be circulated to Members of the Commission and to other Member Nations and Associate Members of the Organization and international organizations for their information, as soon as they become available.
9. Observers
1. Any Member Nation or Associate Member of the Organization that is not a member of the Commission may, upon its request, be represented in an observer capacity at meetings of the Commission and of its subsidiary bodies as appropriate.
2. States which, while not Members of the Organization, are members of the United Nations, any of its Specialized Agencies or the International Atomic Energy Agency may, upon their request, and with the approval of the Commission be represented in an observer capacity in accordance with the provisions adopted by the Conference of the Organization relating to the granting of observer status to Nations.
3. The Commission shall provide for the participation in its meetings, as observers, and in accordance with its Rules of Procedure, of intergovernmental and international non-governmental organizations having special competence in the field of activity of the Commission.
4. Participation of international organizations in the work of the Commission and relations between the Commission and such organizations shall be governed by the relevant provisions of the Constitution and General Rules of the Organization as well as the rules on relations with international organizations adopted by the Conference and Council of the Organization.
10. Rules of Procedure
The Commission may adopt and amend its own rules of procedure which shall be in conformity with the Constitution and General Rules of the Organization and with the Statement of Principles Governing Commissions and Committees adopted by the Conference. The rules of procedure and amendments thereto shall come into force upon approval by the Director-General.
11. Cooperation with International Organizations
Cooperation between the Commission and other international organizations on matters of mutual interest shall be carried out in accordance with relevant Rules and Procedures of the Organization.
DRAFT CONFERENCE RESOLUTION .../..
Amendment to Rule XXIX.2, Rule XXX.2, Rule XXXI.2, Rule XXXII.2, and Rule XXXIII.2 of the General Rules of the Organization
THE CONFERENCE,
Having taken note of the views of the Committee on Constitutional and Legal Matters, at its Eighty-ninth Session (Rome, 2-3 October 2006) on the proposed amendments to Rule XXIX.2 (Members of the Committee on Commodity Problems), Rule XXX.2 (Members of the Committee on Fisheries), Rule XXXI.2 (Members of the Committee on Forestry), Rule XXXII.2 (Members of the Committee on Agriculture), and Rule XXXIII.2 (Members of the Committee on World Food Security) of the General Rules of the Organization;
Considering that the Council, at its Hundred and Thirty-first Session (Rome, 20-25 November 2006), agreed to transmit to the Conference, for approval, the proposed amendments to the above mentioned Rules XXIX.2, XXX.2, XXXI.2, XXXII.2, and Rule XXXIII.2 of the General Rules of the Organization;
Having noted that these Rules that require biennial notification of membership to the “Open Committees” of the Council resulted in cumbersome and time-consuming administrative processes, without offering any added value to the substantive work of such Committees, and that the proposed amendment to the above Rules dealing with membership to these Committees would allow streamlining administrative procedures with respect to participation of Members;
Having further noted that there has to be formal recognition of the effective presence of Members at the meetings of the above Committees to avoid the validity of the deliberations being questioned, but that it is equally evident that the present system based on expiry of membership at the end of each biennium places an administrative burden on Permanent Representatives, Government Offices and the Secretariat, and that reducing this burden would significantly contribute to efficiency savings in governance;
Recalling that the principle of loss of membership after failure to attend two consecutive sessions of one the Governing bodies of the Organization is already contained in Rule XXII.7 of the General Rules of the Organization governing Membership of the FAO Council which provides that “A Member of the Council shall be considered to have resigned if ... it has not been represented at two consecutive sessions of the Council.”;
Decides:1
to amend Rule Rule XXIX.2, Rule XXX. 2, Rule XXXI.2, Rule XXXII.2, and Rule XXXIII.2 of the General Rules of the Organization as follows:
“2. The notification... may be made at any time and membership acquired on the basis thereof shall be
for a bienniumconsidered valid unless the member has not been represented at two consecutive sessions of the Committee, or has notified its withdrawal from it. The Director-General shall circulate, at the beginning of each session of the Committee, a document listing the Members of the Committee.”
1 Words struck out to be deleted, words underlined to be added