Report of the Fifty-sixth Session of the Committee on Constitutional and Legal Matters (Rome, 15-17 April 1991)
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248. The Council had before it the Report of the Fifty-sixth Session of the Committee on Constitutional and Legal Matters (CCLM) which had met from 15 to 17 April 1991 under the Chairmanship of Ambassador Fotis G. Poulides, who introduced the Report to the Council.
249. The Council considered the proposed agreement with the African Development Bank (ADB) and the African Development Fund (ADF), as set out in Document CL 99/5. The Member Nations of the Region underlined the great importance of the new Agreement which would replace the Memorandum of Understanding concluded in 1981, and expressed the hope that this would serve to increase cooperation between the African countries having common membership in the Bank and FAO.
250. The Council endorsed the view expressed by the CCLM at its Fifty- sixth Session that "it would be desirable to strengthen, foster and consolidate the cooperative programme existing between the Bank and the Fund on the one hand, and FAO on the other hand, to create a proper framework through which assistance might be channelled in an effective manner to member countries in the Region". It was also recognized and that the Memorandum of Understanding presently in force should be brought into line with changes already made in agreements with other financial institutions.
251. The Council approved the Cooperation Agreement as set out in Appendix H to the present Report with a view to signature by the Director-General, subject to confirmation by the Conference in accordance with Rule XXIV.4(c) of the General Rules of the Organization.
252. The Council expressed the hope that the Agreement would be signed quickly after the Conference and that full implementation would take place as soon thereafter as possible.
253. The Council recalled that at its Ninety-eighth Session in November 1990, it had requested the Secretariat to prepare detailed documentation concerning all existing regional economic integration organizations which might be interested in possible membership in FAO. Accordingly, the Secretariat had commissioned the Research Centre for International Law of the University of Cambridge (United Kingdom) to carry out a survey of such organizations, including a definition of the term "regional economic integration organizations". This study had been reproduced in document CL 99/21 and was supplemented by document CL 99/21-Sup.l, prepared by the Secretariat. The Council noted further that the survey was reasonably complete and would be of great help to it and to the Conference in considering the question at hand. The survey had concluded that on the basis of the evidence presently available, the only organization which did now or was likely in the foreseeable future to meet criteria of the kind which FAO was considering was the European Economic Community (EEC). The Council noted, however, that a number of other such organizations had been established and that many were evolving rapidly. The Council could, in due course, draw the conclusions it deemed appropriate.
254. The question of possible forms of membership for regional economic integration organizations in FAO had been under consideration both by the Council and the CCLM since June 1989. At its Ninety-eighth Session in November 1990, the Council had considered a report by the CCLM and the report of the Director-General which was based, in part, on a series of exploratory talks held between the Secretariat of FAO and the Commission of the European Communities. Following its discussions, the Council had requested the Director-General to hold further talks with the European Economic Community (EEC) and that the Secretariat should prepare detailed documentation on the various matters which had been discussed in the course of that session of the Council, including drafts of possible amendments to the Basic Texts of the Organization. The Council had requested that the matter be referred for consideration by the CCLM at its Fifty-sixth Session, and that the CCLM report to the Council at its present session.
255. The Council noted that there has been general agreement amongst the members of the CCLM on. the main lines of the draft amendments which appeared in its Report, as well as on the text of most of these amendments. On the other hand, there were several proposed amendments on which the Committee had not been able to reach a consensus. The Committee had requested that the Secretariat pursue its work on the issues which had not been resolved and report thereon to the Council directly. The Council noted that there had been further discussions between the Secretariat and representatives of the EEC and that these had been summarized in two supplementary reports by the Director-General. The Council therefore established a Working Group under the Chairmanship of one of the Vice- chairmen in order to review the various proposed amendments in the light of the opinions put forward in the debate described hereafter.
256. It emerged from the discussions of the Council that there was no objection, in principle, to the concept of allowing for the possibility that regional economic integration organizations become members of FAO, as long as they met the criteria which would be set forth in the amendments to the FAO Constitution. This could, in fact, add an important new dimension to the activities of the Organization. The Council noted that according to the study the EEC represented the only present known example of a regional economic integration organization meeting the criteria on which the study was based and on which the Council had given some general guidelines. Further, there was no objection, in principle, to the eventual membership in the Organization of the EEC. There were, however, still a number of legal, technical and political problems which would require further careful consideration by the competent bodies of the Organization.
257. The Council was in unanimous agreement that it was absolutely indispensable that a regional economic integration organization should be required to present a full and detailed declaration of competence in connection with its application for membership, as this was a key element in circumscribing the practical aspects of the way in which the organization would exercise its rights and obligations as a member of FAO.
258. The Council considered that the declaration of competence which had been submitted by the delegation of the EEC was incomplete, and would not be a satisfactory basis for making a determination on their eventual request to become a member of the Organization. It would be extremely useful if such declaration of competence could indicate not only the subject matter on which competence had been transferred in more detail, but also how the exercise of that competence would work in practice when the regional economic integration organization became a member of FAO. Such a detailed declaration of competence should be given as soon as possible in order to aid the Council in its deliberations on the proposed amendments and to facilitate a final judgement by the Conference.
259. The Council endorsed the concept that any form of membership for regional economic integration organizations should be based on the principle of the alternative exercise of membership rights. It was emphasized that the implementation of this principle must not result in any increase in the rights of the members of the regional economic integration organization. Clear principles should be established regarding the exercise of concurrent competence. The Council considered that a mechanism should be devised whereby Member Nations would know at all times who, as between the organization and the Member States thereof, has competence.
260. The Council reiterated that the form of membership for regional economic integration organizations must be sui generis. It was agreed that this would require further precision in the FAO Constitution. This could be done through a separate paragraph in the Constitution. Alternatively, a few members considered that this should be done by means of a special Protocol.
261. The Council noted that the problem of the exercise of membership rights also had to be resolved in a clear and satisfactory manner with respect to participation in FAO bodies, in particular bodies of restricted nature. There was agreement that regional economic integration organizations could not take part in bodies dealing with the "institutional life" of the Organization, but it was recognized that this might require further elaboration.
262. The Council agreed that the membership of a regional economic integration organization should not result in increasing the obligations or costs to FAO Member Nations. Such costs would have to be borne by the regional economic integration organization itself.
263. Many members of the Council emphasized that assistance which would be supplied from regional economic integration organizations such as the EEC should be made available on a multilateral basis to all FAO Member Nations.
264. The Council noted that the Legal Counsel had consulted with the Legal Offices of other UN organizations. They had expressed their opinion that, in principle, the form of membership proposed for regional economic integration organizations in FAO would cause them no problems. The Legal Office of the United Nations International Development Organization (UNIDO) suggested that any form of membership for regional economic integration organizations might be limited to matters in respect of which the regional economic integration organizations enjoyed exclusive competence.
265. A number of members considered that before the question of the membership of regional economic integration organizations in FAO could be resolved, it would be necessary to have further consultations with other organizations of the UN system. A few members considered that the matter should be brought to the attention of the governing bodies of those organizations.
266. The Council agreed that consideration should be given to the question of the criteria that should be established for regional economic integration organizations to be eligible for membership of FAO. In particular, it considered that greater flexibility might be envisaged in order to allow for possible membership in FAO by a wider range of regional economic integration organizations. It was recognized that one of the key issues involved was whether the regional economic integration organization should have "exclusive competence" in matters within the purview of FAO.
267. Finally, the Council underlined the urgency of amending Article XIV of the Constitution without delay in order that regional economic integration organizations and in particular the EEC, could participate in agreements concluded thereunder, where exclusive competence over matters within the purview of the agreement had been transferred to such organizations.
268. In reply to two questions which had been raised, the Legal Counsel confirmed that, first, membership in FAO of a regional economic integration organization would entitle such member to participate in bodies operated jointly by FAO and other organizations, such as the Codex Alimentarius and the World Food Programme Committee on Food Aid Policies and Programmes (CFA). However, the exercise of rights of membership by regional economic integration organizations might require changes in the Rules of Procedure and working methods of joint bodies such as the CFA, and some procedural decisions might consequently be required by the relevant intergovernmental bodies. Second, the Legal Counsel confirmed the fact that a regional economic integration organization which became a member of FAO would be assimilated to a Member Nation did not affect the Vienna clause which referred to States which are members of the United Nations, any of the Specialized Agencies or the International Atomic Energy Agency (IAEA). The full opinion is attached to the Report of the Council in Appendix I.
269. The observer of the EEC stated that the quality of members of FAO would not automatically lead the EEC to enter into Conferences or Conventions the content of which did not fall within its competences. Indeed, the EEC did not expect to avail itself of this new quality to change existing practices, providing for express mention, in the final clauses of the international legal instruments, of EEC accession to them.
270. The Legal Counsel confirmed that he had consulted the UN Legal Office on this subject, and that they had expressed their agreement with the foregoing opinions.
271. With respect to the procedure to be followed, the Council decided to propose the draft amendments to the Basic Texts set out in Appendix J to this Report, on the understanding that such proposal did not constitute a political commitment on its part, since this was a matter within the competence of the Conference. The Council agreed to transmit the text of the proposed amendments to the Conference for consideration at its Twenty- sixth Session, including, where no consensus had been reached, some provisions in square brackets with alternative texts. The Council agreed to establish a committee consisting of a limited number of Member Nations selected by the Director-General, after consultation with the regional groups, to review the text and, in particular, those provisions contained in brackets. The Council decided that the EEC should be invited to be present at the meetings of this committee to present its views on the texts. The texts should subsequently be reviewed by the CCLM in October 1991. The CCLM and the committee would report thereon to the Council at its Hundredth Session in November 1991, and the Council would make any further views known to the Conference, as appropriate, for consideration at its Twenty-sixth Session in November 1991.
272. The Council recalled that the Committee on Food Aid Policies and Programmes (CFA) held its First Special Session in Rome on 18 March 1991. At this Session, the CFA had considered the report of the Working Group, established by it at its Thirtieth Session, on the governance of the UN/FAO World Food Programme and the relationship between the United Nations, the Food and Agriculture Organization of the United Nations (FAO) and the World Food Programme (WFP). The CFA had decided to submit to its parent bodies, the Economic and Social Council of the United Nations (ECOSOC) and the FAO Council, draft resolutions for submission, respectively, to both the forthcoming UN General Assembly and the Conference of FAO, on the membership of the CFA and the revised General Regulations of the WFP. The draft resolution was accompanied by the Revised General Regulations for the WFP.
273. The Council noted that the Revised General Regulations maintained substantially the technical role of FAO with respect to the activities of WFP and preserved and strengthened the principle of reliance by WFP on the technical services of FAO, as well as on other UN agencies as necessary, while allowing administrative autonomy to WFP. FAO's technical role in project preparation and evaluation had been expressly recognized and, in view of its general responsibility for food security and policy in that context, it would continue to provide technical advice to WFP on these matters also.
274. The Council recognized that the best possible compromise had been reached on the draft Revised General Regulations by consensus at the Working Group and consequently at the CFA in March 1991. The Council expressed its deep satisfaction that this matter had been resolved satisfactorily in a balanced and equitable manner and that, once endorsed by the FAO Council and by the ECOSOC, and approved by the FAO Conference and the UN General Assembly, the Revised General Regulations would enter into force on 1 January 1992.
275. The Council noted that the proposed draft Revised General Regulations envisaged that the WFP Fund should be established by the Director-General under Regulation 6.7 of the Financial Regulations of FAO, which provides that;
"...Trust and Special Funds and voluntary contributions shall be administered in accordance with the Financial Regulations of the Organization, unless otherwise provided for by the Conference...".
while the management of the WFP Fund would be governed by separate Financial Regulations to be proposed by the Executive Director of WFP and approved by the CFA after receiving advice from the Advisory Committee on Administrative and Budgetary Questions (United Nations) (ACABQ) and the FAO Finance Committee.
276. The Council noted that a further resolution of the Conference in accordance with the provisions of Financial Regulation 6.7, would be required to authorize this exception. A draft resolution to this effect would be presented to the next session of the FAO Finance Committee in September 1991, for onward submission to the Hundredth Session of the Council and to the Twenty-sixth Session of the Conference in November 1991.
277. The Council expressed its deep appreciation to the UN Secretary- General, the Director-General of FAO, the Executive Director of WFP, and to the Chairman of the CFA Working Group, for the effort and understanding which they had demonstrated in arriving at a satisfactory solution to the issues at hand.
278. The Council unanimously endorsed the draft resolution transmitted to it by the CFA, the text of which is set out in Appendix K to this report, and decided to submit it to the Twenty-sixth Session of the FAO Conference for adoption. In response to a question it was explained that the principle of balanced geographical representation was already reflected in the enabling resolutions.
279. The Council recalled that at its Ninety-second Session in 1987, the Council had mandated the Director-General to negotiate and conclude, on behalf of FAO, a separate Headquarters Agreement for the UN/FAO World Food Programme (WFP). The Council recalled that formal negotiations on a draft paper by the legal officers of FAO and the UN had been opened in 1988, that a number of issues which had arisen had been submitted by the Director-General to the CCLM in May 1990 and that a further round of negotiations had been held in September 1990, at which time the outstanding issues had been resolved satisfactorily.
280. The matter had been referred to the Council at its Ninety-eighth Session in November 1990, in accordance with the recommendation of the CCLM. The Council recalled that, at that session, it had called upon the UN Secretary General and the Director-General of FAO to conclude the Agreement without delay. It had, however, noted that some important questions were still outstanding regarding the interpretation of certain provisions in the FAO Headquarters Agreement. These concerned, in particular, the immunity of the Organization from legal process and the non-applicability of Italian labour legislation to the employment relationship between the Organization and its staff.
281. The Council recalled that in further meetings between FAO and the Italian Government in late December 1990 and early January 1991, a draft Exchange of Letters on the interpretation of the foregoing matters concerning the FAO Headquarters Agreement and the extension of the agreed interpretation to the new WFP Headquarters Agreement had been finalized.
282. The Council noted with great satisfaction that the Headquarters Agreement for the World Food Programme had been signed at FAO Headquarters by the United Nations, FAO and the Italian Government on 15 March 1991, and that the two interpretation agreements had also been signed at the same time.
283. The Council noted with great appreciation that, in October 1990, an Exchange of Letters had been concluded between FAO and the Italian Government under which the Italian Government undertook to reimburse the entire costs of rental of FAO and WFP Headquarters premises while such rented premises were still required.
284. The Council expressed its great satisfaction with the highly successful outcome of the whole matter and, in particular, with the conclusion of the Headquarters Agreement, the two interpretation agreements and the agreement on reimbursement of rent. It expressed appreciation to the UN Secretary General, the Director-General of FAO, and the Host Government for the excellent cooperation which had led to the satisfactory conclusion of negotiations. The Council took note of the statement by the Host Government concerning discussions on the question of immunity from preventive arrest with respect to staff members faced with extradition charges and expressed the hope that negotiations would be concluded in a timely manner. Finally, the Council expressed its deep appreciation for the great generosity of the Italian Government in respect of the reimbursement of rent for the FAO and WFP Headquarters premises.
Invitations to Non-Member Nations to Attend FAO Sessions
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285. In accordance with paragraph B-1 of the "Statement of Principles relating to the granting of Observer Status to Nations", the Council considered the request made by the Union of Soviet Socialist Republics (USSR) to attend as an observer the Ninety-ninth Session of the Council and agreed to its participation. The Council expressed its satisfaction at the presence of the USSR, a founder of FAO, and hoped that in the near future it would become a full member of the Organization.
286. In accordance with paragraph B-2 of the aforementioned Statement of Principles, the Council was informed that since its Ninety-eighth Session, the Director-General had extended an invitation to the USSR to participate as an observer at:
FI-701 - Nineteenth Session of the Committee on Fisheries (Rome, Italy, 8-12 April 1991)
AGP-725 - Fourth Session of the Commission on Plant Genetic Resources (Rome, Italy, 15-19 April 1991)
COAG-701 - Eleventh Session of the Committee on Agriculture (Rome, Italy, 22-30 April 1991)
AGA-701 - Twenty-ninth Session of the European Commission for the Control of Foot-and-Mouth Disease (Rome, Italy, 23-26 April 1991)
FO-726 - Twenty-fifth Session of the European Forestry Commission (Oslo, Norway, 3-7 June 1991)
287. The Council also agreed to the Director-General's proposal to invite the USSR to attend as observer the Twenty-seventh Session of the European Commission on Agriculture (Herrsching, Germany, 1-5 July 1991 (REUR-701)).
288. The Council was informed of a request made by the Palestine Liberation Organization on 5 June 1991 to attend its Ninety-ninth Session as an observer. The Council agreed to this participation.
289. As provided for in Rule XXVI-4 of the General Rules of the Organization (GRO), the Council was advised that His Excellency Musa Ahmed Abu Frewa had been designated as the new Government Representative of the Libyan Arab Jamahiriya in the Programme Committee as of the Sixty-first Session.
290. As provided for in Rule XXVII-4(a) GRO, the Council was advised that Mr Steven D. Hill had been designated as the Government Representative of the United States of America for the Seventy-first Session of the Finance Committee.
1CL 99/5;CL 99/PV/14; CL 99/PV/19.
2CL 99/21;CL 99/21-sup.1; CL 99/PV/14; CL 99/PV/19.
3CL 99/5;CL 99/27-CL 99/27; CL 99/PV/14; CL 99/PV/15; CL 99/PV/16; CL 99/PV/19.
4CL 99/25; CL 99/PV/17; CL 99/PV/18; CL 99/PV/19.
5CL 99/26; CL 99/PV/17; CL 99/PV/18; CL 99/PV/19.
6 CL 99/INF/8; CL 99/INF/8-Sup.1; CL 99/PV/1; CL 99/PV/19.
7CL 99/PV/l; CL 99/PV/19.
8CL 99/INF/10; CL 99/PV/18; CL 99/PV/19.
