CONSTITUTIONAL AND LEGAL MATTERS
Report of the Sixtieth Session of the Committee on Constitutional and Legal Matters1 (Rome. 14-16 April 1993)
220. The report was presented to the Council by its Chairman, Mr Samuel Fernández Illanes (Chile).
- Agreement for the Establishment of the Indian Ocean Tuna Commission
221. The Council noted that, at this stage, the matter was being submitted to it for information only.
222. The Council recalled that the Draft Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC) had been reviewed by the Committee on Constitutional and Legal Matters (CCLM) several times in the past, and that a revised text had been considered by the Council at its Hundred and Second Session in November 1992. The Council noted that the problems which still had to be settled were of a political nature and arose out of the proposed participation in the new Commission of two Member States of the European Economic Community (EEC) in respect of their overseas territories. In this regard, the Council had decided that consultations should continue between the Secretariat and the parties concerned on the question of participation and that informal consultations be held with other interested parties to ensure that no other problems remained. The outcome of these consultations had been referred to the CCLM at its Sixtieth Session held in April 1993.
223. The Council noted that extensive consultations had been held with the Governments of India, Mauritius, France and the United Kingdom and that a compromise formula had emerged therefrom. The main elements of the compromise formula were that:
the framework of the IOTC Agreement at this stage, but that discussions be initiated with the EEC and its Member States concerned on the wider issue of EEC Member States' participation in meetings and agreements "in respect of their overseas territories" on matters for which the EEC would otherwise have exclusive competence (the Director-General would refer this issue to the CCLM at a forthcoming session).
224. The Council noted that the above formula was acceptable in principle to the countries directly concerned by the question of participation, as well as the EEC. Informal consultations with other interested parties would continue and the results would be reported to the CCLM at its next session in October 1993.
225. The Council noted that, in any case, the text of the Agreement could not be formally communicated to Member Governments for acceptance under Article XIV of the FAO Constitution until such time as the matter of the reservations clause and the amendment of paragraph 10 of the Appendix to Conference Resolution 46/57 had been settled by the Conference at its Twenty-seventh Session in November 1993.
226. The Council concluded that it would be opportune for the CCLM to review the situation once again at its Sixty-first Session in October 1993 and report to the Council at its Hundred and Fourth Session in November 1993, with a view to the formal adoption of the Agreement at that session.
227. The Council recalled that, in the course of discussions concerning the Agreement for the Establishment of the Indian Ocean Tuna Commission, it had come to light that the proposed article on reservations, which was based on paragraph 10 of the Appendix to Conference Resolution 46/57 (Part R of the Basic Texts), did not appear to be consonant with the current state of public international law. As a result, at its Hundred and Second Session in November 1992 the Council had decided to request the CCLM to prepare a draft amendment to paragraph 10 of the Appendix to Conference Resolution 46/57 for its approval at the current session and transmittal to the Conference in November 1993 for adoption.
228. The Council recalled that the principles and procedures adopted by the Conference in 1957 under Resolution 46/57 were intended to reflect State practice with respect to international agreements as it stood at that time. Consequently, paragraph 10 of the Appendix stipulated that reservations would require unanimous acceptance by all contracting parties in order to take effect.
229. The CCLM had noted that the legal position had changed when the Vienna Convention on the Law of Treaties was adopted in 1969. Part II, Section 2 of that Convention provided that a State entering into a multilateral treaty may formulate a reservation unless:
230. The Council noted that state practice had confirmed the general acceptability of the rules on reservations included in the Vienna Convention and the degree of flexibility they provide. It would thus seem appropriate that conventions and agreements concluded under Article XIV of the Constitution follow the general rules of public international law as reflected in the relevant provisions of the Vienna Convention. The reservation clause need not be identical from one convention to the other; the final choice should be left to the negotiating States in the light of the desired objectives. The Council also considered that the option of not having a reservations clause at all should be left open to negotiating States.
231. The Council accordingly recommended that the following draft Resolution, containing the new text of paragraph 10 of the Appendix to Conference Resolution 46/57 which had been proposed by the CCLM, be transmitted to the Conference for adoption:
THE CONFERENCE,
Recalling that Part R of the Basic Texts of the Organization sets out a number of principles and procedures which should govern conventions and agreements concluded under Articles XIV and XV of the Constitution and commissions and committees established under Article VI of the Constitution,
Recalling also that these principles and procedures were adopted by the Conference in 1957 under its Resolution 46/57,
Noting that paragraph 10 of the Appendix to the foregoing Resolution concerning reservations was intended to reflect State practice with respect to international agreements as it stood in 1957 but that the subsequent evolution of public international law calls for a review of the provisions of that paragraph in order that it conform to present State practice,
Considering that the legal position had undergone significant change when the Vienna Convention on the Law of Treaties was adopted in 1969 and that present State practice has confirmed the general acceptability of the rules on reservations included in the Vienna Convention and the degree of flexibility they provide,
Recalling also that, in its Hundred and Third Session held in June 1993, the Council agreed that it would be opportune and legally correct to amend the provisions of Conference Resolution 46/57, which deal with reservations:
Decides to amend paragraph 10 of the principles and procedures adopted under its Resolution 46/57 to read as follows:
10. A clause on the admissibility of reservations may be inserted in conventions and agreements. Any such clause shall be in line with public international law as reflected in particular in the provisions of Part II, Section 2 of the Vienna Convention on the Law of Treaties of 1969. Failing such a clause, the admissibility of reservations shall be governed by public international law as reflected in the above provisions of the Vienna Convention. The Director-General of the Organization shall notify all signatory, acceding and accepting governments of all reservations."
232. The Council noted that the CCLM had studied a Draft Agreement between the Network of Aquaculture Centres in Asia and the Pacific (NACA) and FAO which had been proposed by the Governing Council of NACA. The Council recalled that NACA had been established originally as a project funded by the United Nations Development Programme (UNDP) for which FAO was the Executing Agency. The project had proved to be very successful and the participating governments had decided to convert it into a self-sustaining international organization. The Agreement on the Network of Aquaculture Centres in Asia and the Pacific was adopted by a Conference of Plenipotentiaries which was held in Bangkok, Thailand from 5 to 8 January 1988 at the FAO Regional Office for Asia and the Pacific (RAPA).
233. The Council noted that the NACA Agreement had come into force on 11 January 1990 and that at present, twelve governments were parties to the NACA Agreement. They were: Bangladesh, Cambodia, China, Hong Kong, India, Democratic People's Republic of Korea, Malaysia, Myanmar, Nepal, Pakistan, Sri Lanka and Viet Nam.
234. The Council noted that the proposed Agreement was very concise and that the objective was to establish and maintain a close working relationship between NACA and FAO. Provision was made for participation of FAO in the NACA Governing Council as an observer. Moreover, it was provided that FAO should participate in meetings of the NACA Technical Advisory Committee as a full member, thus giving to FAO an important role in the activities of NACA. Finally, it was foreseen that the FAO Regional Office for Asia and the Pacific would serve as a focal point for liaison between NACA and FAO which, in fact, had been the case for many years.
235. The Council noted that the CCLM had ascertained that the basic requirements of the Guiding Lines for formal relationship agreements between FAO and other intergovernmental organizations, which were set out in the Appendix to Conference Resolution 69/59, had been fully met and that the text was in conformity with the FAO Constitution.
236. The Council endorsed the text of the proposed Draft Cooperation Agreement and decided to transmit it to the Twenty-seventh Session of the Conference in November 1993 for confirmation. (The text is attached in Appendix J hereto).
- Seating Arrangements for the European Economic Community at Sessions of the Council
237. The Council recalled that in the course of its Hundred and Second Session in November 1992, a practical question had arisen as to the seating of the European Economic Community within the Council Chamber. At the suggestion of the Independent Chairman of the Council, a provisional
seating arrangement had been agreed upon by all parties concerned for the duration of the session. The Council had then decided to request the CCLM to examine the subject at its next session and to submit to it in June 1993 a formula that would be clear and, if possible, definitive.
238. The Council noted that the CCLM, in considering the matter, had taken account of the relevant provisions of the Constitution, i.e. Articles II.3, II.8, II.9 and V.l.
239. The Council took note of the CCLM's conclusion that there could be no doubt, given the express wording of Article II.9 of the Constitution, that the EEC, as a Member Organization, had the right to participate in all meetings of the Council in which any of its Member States were entitled to participate. Six of its Member States were currently members of the Council. There could also be no doubt that the EEC, as a Member Organization, was entitled to exercise membership rights in any such meetings on matters within its competence, on an alternative basis with its Member States that were members of the Council.
240. The Council noted moreover that, at its Hundred and Second Session in November 1992, a number of Council members had suggested at the time that the seating arrangements for the EEC should reflect the sui generis nature of the EEC's rights to participate in meetings of the Council.
241. The Council noted the conclusion of the CCLM that there was thus a distinct difference between the legal basis on which Member Nations on the one hand, and Member Organizations on the other hand, may be entitled to participate in meetings of the Council. Member Nations may participate if they are elected to membership of the Council under the provisions of Article V. 1 of the Constitution. Member Organizations, on the other hand, were expressly declared ineligible for election to any body of restricted membership by the terms of Article 11.9. Their rights to participate in Council meetings derived then, not from Article V.l, but rather from Article II.9, which accorded Member Organizations "the right to participate in matters within its competence in any meeting of the Organization, including any meeting of the Council ..., in which any of its Member States are entitled to participate." It appeared that this difference in legal status was well reflected in the provisional seating arrangements presently in force, which clearly reflected the sui generis nature of Member Organizations' rights to be present, participate and exercise membership rights in Council meetings.
242. The Council adopted the proposal by the CCLM that in future sessions the EEC should continue to be seated immediately after all Nations, members of the Council, in the fiftieth seat in the same area.
- Italian Tax on Staff Members' Bank Accounts
243. The Council noted that the CCLM had been informed of the "sei per mille" tax levied by the Italian authorities on the bank accounts of staff members. The CCLM had been informed that the Organization would be preparing a scheme to recover the sums involved through the tax equalization fund mechanism.
244. The Council agreed that both the CCLM and the Finance Committee should be kept informed of future developments on this matter.
Invitations to Non-Member Nations to attend FAO Sessions2
245. In accordance with paragraph B-l of the "Statement of Principles relating to the Granting of Observer Status to Nations",3 the Council considered the request made by the Czech Republic, the Russian Federation, the Slovak Republic and the Ukraine to attend as observers the Hundred and Third Session of the Council, and approved their participation.
246. In accordance with paragraph B-2 of the aforementioned Statement of Principles, the Council was informed that since its Hundred and Second Session, the Director-General, on being so requested, had extended invitations to the following Non-Member Nations to attend as observers the Sessions listed below:
Croatia
AGA-701 Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease (FMD), Rome, 27-30 April 1993
Czech Republic
ESC-701 Fifty-ninth Session of the Committee on Commodity Problems, Rome, Italy, 7-11 June 1993
AGA-701 Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease (FMD), Rome, 27-30 April 1993
COAG-701 Twelfth Session of the Committee on Agriculture, Rome, 26 April - 4 May 1993
CX-718 Twenty-fifth Session of the Codex Committee on Pesticide Residues, Havana, Cuba, 19-26 April 1993
AGP-725 Fifth Session of the Commission on Plant Genetic Resources, Rome, 19-23 April 1993
ESC-714 Twenty-sixth Session of the Intergovernmental Group on Oilseeds, Oils and Fats, Rome, Italy, 13-16 April 1993
CX-723 Seventh Session of the Codex Committee on Meat Hygiene, Rome, Italy, 29 March -2 April 1993
ESC-728 Eighteenth Session of the Committee on World Food Security, Rome, Italy, 29 March -1 April 1993
FI-701 Twentieth Session of the Committee on Fisheries, Rome, 15-19 March 1993
FO-701 Eleventh Session of the Committee on Forestry, Rome, Italy, 8-12 March 1993
Russian Federation
ESC-701 Fifty-ninth Session of the Committee on Commodity Problems, Rome, Italy, 7-11 June 1993
AGA-701 Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease (FMD), Rome, 27-30 April 1993
COAG-701 Twelfth Session of the Committee on Agriculture, Rome, 26 April - 4 May 1993
AGP-725 Fifth Session of the Commission on Plant Genetic Resources, Rome, 19-23 April 1993
ESC-728 Eighteenth Session of the Committee on World Food Security, Rome, Italy, 29 March -1 April 1993
FI-701 Twentieth Session of the Committee on Fisheries, Rome, 15-19 March 1993
FO-701 Eleventh Session of the Commission on Forestry, Rome, Italy, 8-12 March 1993
Slovak Republic
AGA-701 Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease (FMD), Rome, 27-30 April 1993
COAG-701 Twelfth Session of the Committee on Agriculture, Rome, 26 April - 4 May 1993
Slovenia
AGA-701 Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease (FMD), Rome, 27-30 April 1993
Ukraine
FI-803 Technical Consultation on Stock Assessment in the Black Sea, Ankara, Turkey,
15-19 February 1993
FO-701 Eleventh Session of the Commission on Forestry, Rome, Italy, 8-12 March 1993
ESC-728 Eighteenth Session of the Committee on World Food Security, Rome, Italy, 29 March -1 April 1993
247. The Council also agreed to the Director-General's proposal to invite the Russian Federation to attend as an observer the Thirty-sixth Session of the Intergovernmental Group on Rice (Rome, 28 June - 1 July 1993).
Applications for Membership in the Organization4
248. The Council was informed of the applications for membership received from the Slovak Republic, the Czech Republic, the Republic of Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia and Eritrea.
249. Pending a decision by the Conference on these applications and pursuant to Rule XXV. 11 of the General Rules of the Organization and paragraphs B-1, 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 Slovak Republic, the Czech Republic, the Republic of Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia and Eritrea to participate, on request, in an observer capacity, at Council sessions as well as at regional and technical meetings of the Organization of interest to them.
Changes in Representation of Member Nations on the Programme and Finance Committees5
250. As provided for in Rule XXVI-4(a) of the General Rules of the Organization (GRO), the Council was advised that Mr Chadli Laroussi, Permanent Representative to FAO, had been designated as the new Representative of Tunisia on the Programme Committee, as of the Sixty-sixth Session.
251. As provided for in Rule XXVII-4(a) GRO, the Council was advised that Mr Shahid Rashid, Agricultural Counsellor and Alternate Permanent Representative of the Islamic Republic of Pakistan to FAO, had replaced Mr Saleem Khan as the Government Representative for the Seventy-fifth Session of the Finance Committee.
252. The Council was also advised that Ms Marinela R. Castillo, Director, Planning and Monitoring Service, Department of Agriculture, had been designated as the new Representative of the Philippines on the Finance Committee, as of the Seventy-fifth Session. However, due to previous commitments on her part, His Excellency Sergio A. Barrera, Ambassador and Permanent Representative to FAO, had replaced Ms Castillo as the Government Representative for the Seventy-fifth Session of the Finance Committee.
253. The Council was further informed that Mr Igor Nikolaus Marincek, Secretary, National Swiss Committee for FAO and Chief, Federal Bureau of Agriculture, had replaced the late Rudolphe de Pourtalčs as the Representative of Switzerland as of the Seventy-sixth Session of the Finance Committee.
254. The Council took note of the changes, welcomed the new members and thanked the outgoing ones for their valuable services.
1 CL 103/5; CL 103/PV/6; CL 103/PV/18.
2 CL 103/INF/8; CL 103/INF/8-Sup.l; CL 103/PV/l; CL 103/PV/7; CL 103/PV/18.
3 See FAO Basic Texts. Volume II, Section L (Appendix).
4 CL 103/INF/18; CL 103/INF/19; CL 103/PV/l; CL 103/PV/18.
5 CL 103/INF/10; CL 103/PV/17; CL 103/PV/19.
