CL 123/16 |
|
CL 123/16 |
Hundred and Twenty-third Session |
Rome, 28 October - 2 November 2002 |
REPORT OF THE SEVENTY-FOURTH SESSION OF THE COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS (CCLM) |
Rome, 2 – 3 October 2002 |
II. COMPOSITION OF PROGRAMME AND FINANCE COMMITTEES
III. MEMBERSHIP IN THE CODEX ALIMENTARIUS COMMISSION OF REGIONAL ECONOMIC INTEGRATION ORGANIZATIONS
IV. PRIVACY PROTECTION: RELEASE OF INDIVIDUAL INFORMATION ON STAFF MEMBERS
APPENDIX A: Document CCLM 74/2
APPENDIX B: Proposed Amendments to the Rules of Procedure of the Codex Alimentarius Commission
1. The Seventy-fourth Session of the Committee on Constitutional and Legal Matters (CCLM) was held on 2 and 3 October 2002. All the Members of the Committee, as listed below, were represented:
Canada, France, Iraq, Malta, Niger, Philippines and Uruguay.
2. The Committee considered document CCLM 74/2 “Composition of the Programme and Finance Committees”. The CCLM noted that at the Hundred and Twenty-second of the Council, Rome, 14 November 2001, “Members of the Asia and Pacific Region proposed that the existing formulae for the representation of different regions on the Programme and Finance Committees be reviewed. The proposal was supported by Members from other regions. The Council agreed to discuss the matter at its Hundred and Twenty-third Session in 2002.”
3. The Committee was of the view that the document was a very complete and comprehensive one, setting out the full historical and factual process which led to the present text of the relevant Rules of the General Rules of the Organization on the composition of the Programme and Finance Committees, including Conference Resolution 11/87. The Committee expressed its appreciation for the quality of the document prepared, which would allow the Council to consider the matter.
4. The CCLM concluded that the whole question was essentially of a political nature. While expressing its readiness to consider the matter again in future, as required, the CCLM could do so only on the basis of options, orientations and guidance provided by the Council itself. Therefore, the CCLM was of the view that Document CCLM 74/2 should be presented in full as APPENDIX A to this report, for complete information of the Council.
5. The Committee reviewed document CCLM 74/3 “Membership in the Codex Alimentarius Commission of regional economic integration organizations (Membership of the European Community)” that had been referred to it by the Director-General, in the light of a number of observations made by the Codex Committee on General Principles, at its Seventeenth Session, held in Paris in April 2002. The Committee noted that both the CCLM and the Council had requested to be kept informed of developments on the matter. The CCLM also recalled that the Codex Alimentarius Commission had acquired great importance, as its work has a significant direct impact upon international trade.
6. The CCLM noted that membership of the Codex Alimentarius Commission was open to all FAO Member Nations and Associate Members and therefore also to the European Community which had become a Member Organization of FAO in 1991, following a process of amendment of the Basic Texts of the Organization. In accordance with Article II, paragraph 9 of the Constitution of FAO, a Member Organization has the right to participate in matters within its competence in any meeting of FAO in which any of its Member States is entitled to participate, unless otherwise provided in rules adopted by the Conference.
7. The Committee also noted that, as a Member Organization of FAO, the European Community is entitled to participate in bodies operated jointly with other organizations of the United Nations system. This is particularly the case with the Executive Board of the World Food Programme and the Codex Alimentarius Commission. This position of principle was recalled in an opinion of the FAO Legal Counsel, cleared with the United Nations Legal Counsel, delivered to the Council of FAO in 1991, and recorded subsequently in a number of documents. In accordance with that opinion, while the European Community is entitled to participate in the work of the Codex Alimentarius Commission, the practical modalities for that participation need to be set out in amendments to the Rules of Procedure of the Commission.
8. The Committee noted that, in the course of 2000 and 2001, a set of amendments to the Rules of Procedure of the Codex Alimentarius Commission had been developed and had been reviewed by the Codex Committee on General Principles. Insofar as the proposed amendments were in line with the provisions of the FAO Constitution and the General Rules of the Organization, they did not call for any particular observations.
9. The Committee examined the specific questions which had been referred to it by the Director-General, on the basis of the observations made by the Codex Committee on General Principles, at its Seventeenth Session in Paris, i.e. (i) the proposed possibility for Member States to develop or support the position of the Member Organization in areas of the Member Organization’s competence, (ii) the exercise of voting rights, and (iii) the participation of the Member Organization in the Executive Committee of the Codex Alimentarius Commission.
(i) Proposed possibility for Member States to develop or support the position of the Member Organization in areas of the Member Organization’s competence
10. The Committee noted that under proposed Rule II, paragraph 2 of the Rules of Procedure of the Codex Alimentarius Commission, which reflects current Article II, paragraph 9 of the FAO Constitution: “A Member Organization shall have the right to participate in matters within its competence in any meetings of the Commission or its subsidiary bodies in which any of its Member States is entitled to participate”. This clause is supplemented by a footnote clarifying the manner in which it should be interpreted and applied, reading as follows: “This is without prejudice to the possibility for Member States to develop or support the position of the Member Organization in areas within its competence”.
11. In considering whether this proposed footnote is compatible with the provisions regarding Member Organizations, as defined in the FAO Basic Texts, the CCLM noted that the proposed footnote had to be seen in the context of the highly technical and specialized nature of the work conducted within the Codex Alimentarius Commission and its subsidiary bodies. In areas within the competence of the Member Organization, the Member States would not be presenting their own position, but merely developing or supporting, from a scientific or technical point of view, the position of the Member Organization as already presented by its representative.
12. Consequently, the CCLM concluded that the proposed footnote, seen in light of the above considerations, was compatible with the constitutional provisions governing the status of a Member Organization within FAO. In this connection, the CCLM recalled that under arrangements reached when the European Community became a Member Organization of FAO, as reflected in the legal opinion of the FAO Legal Counsel, it was anticipated that the exercise of membership rights might involve changes in the Rules of Procedure and the working methods of joint bodies. The CCLM recommended that the proposed footnote be incorporated in the text of the relevant rule of procedure.
(ii) Exercise of voting rights
13. The CCLM noted that, as a result of debates held in the course of the Seventeenth Session of the Codex Committee, it had been recommended that proposed Rule II, paragraph 3 of the Rules of Procedure should read as follows (including the underlined segment):
“A Member Organization may exercise on matters within its competence, in any meetings of the Commission or any subsidiary body of the Commission in which it is entitled to participate in accordance with paragraph 2, a number of votes equal to the number of its Member States which are entitled to vote in such meetings, and present at the time the vote is taken. Whenever a Member Organization exercises its right to vote, its Member States shall not exercise theirs, and conversely”.
14. The CCLM noted that in FAO a Member Organization may exercise, on matters within its competence, in a particular meeting, a number of votes equal to the number of its Member States that are entitled to vote in the meeting. The CCLM noted that in FAO’s practice - provided that that any necessary formalities, such as submission of credentials or registration – had been complied with, it is not required that each of the individual Member States actually be present in the meeting room at the time a vote is taken in order for the Member Organization to be able to exercise its voting right with respect of that individual Member State.
15. The CCLM having considered the particular technical nature of the Codex Alimentarius Commission and its work as well as the proposed possibility for Member States to develop or support the position of the Member Organization in areas within its competence, concluded that proposed Rule II, paragraph 3 of the Rules of Procedure, including the addition recommended by the Codex Committee on General Principles, was not inconsistent with the relevant provisions of the FAO Constitution. In view of the above, the CCLM considered that this would not set a precedent for other bodies of FAO in respect of the regular practice followed by FAO since 1991.
(iii) Participation of Member Organizations in the Executive Committee of the Codex Alimentarius Commission
16. The CCLM noted that under the proposed amendments to the Rules of Procedure of the Codex Alimentarius Commission, a Member Organization of FAO had the right to participate in any meeting of the Commission or its subsidiary bodies, in which any of its member States is entitled to participate and that this included the Executive Committee. However, in the course of the Seventeenth Session of the Codex Committee on General Principles, a few delegations sought the views of the CCLM thereon.
17. The CCLM considered that, in order to address this question it was important to recall that in FAO, a Member Organization has the right to participate in matters within its competence in any meeting of the Organization, including any meeting of the Council or other body, in which any of its Member States is entitled to participate. However, in FAO, a Member Organization does not participate in the Programme Committee, the Finance Committee and the CCLM. In addition, a Member Organization does not participate in the Credentials Committee or the General Committee or any other body of the Conference dealing with the internal working of the Conference, as the Conference may decide.
18. The CCLM also noted that the rationale underlying the above is that it appeared that competence in matters relating to the “institutional life of FAO” remained largely within the competence of Member States, as opposed to technical and substantive matters where substantial transfers of competence to the Member Organization by its Member States had taken place. The CCLM noted that, seen in light of the above, in the case of the Codex Alimentarius Commission, the question which arose was whether the Executive Committee should be equated more with the committees of restricted membership of the Council of FAO, such as the Programme and Finance Committees, or bodies dealing with the internal working of the FAO Conference, such as the General Committee, or, instead, whether it should be equated more with the Council of FAO itself, which deals with both institutional and technical matters.
19. The CCLM concluded that it was essential to consider the functions and activities of the Executive Committee of the Codex Alimentarius Commission in light of the above criteria, but felt that such an assessment – which was not, in itself, an issue primarily of a legal nature - should be carried out by the Codex Committee on General Principles and ultimately the Codex Alimentarius Commission, rather than by the CCLM.
20. While in no way prejudging what decision the Codex Committee on General Principles would take on this matter, the CCLM noted that, in the event that it should be decided that the Executive Committee should be equated more with the FAO Council and, consequently, that the Member Organization should be able to participate in the Executive Committee, the Member Organization would exercise membership rights on an alternative basis with the Member elected from the relevant region. In the case of the European Community, in the event that the Member from Europe should be a State other than a Member of the European Community, the Community would not participate in the Executive Committee.
21. Finally, the CCLM noted that, subject to the conclusions reached by the Codex Alimentarius Commission, the proposed amendments to the Rules of Procedure, including relevant footnotes (Appended to this Report as APPENDIX B) would be incorporated in the Procedural Manual of the Codex Alimentarius Commission.
22. The CCLM took note that this item was placed on the agenda of the CCLM at the request of the Finance Committee which ”agreed that the matter should be referred to the CCLM and suggested that European Commission privacy guidelines (Directive 95/46/EC of 24 October 1995) could serve as a point of reference.”1
23. The CCLM reviewed document CCLM 74/4 entitled ”Privacy protection: release of individual information on staff members” analyzing the issue of release of individual information on staff members, including the right to privacy of staff members when using FAO’s communication facilities, and the disclosure of information regarding visitors of the FAO official website to national authorities of FAO Members. The CCLM noted that the document, in addition to taking the European Union Directive 95/46/EC as a point of reference, gave an overview of the United Nations and OECD guidelines on the protection of privacy.
24. The CCLM expressed its appreciation for the work done by the Secretariat and considered the document as an excellent basis for the preparation of FAO guidelines on this issue. The CCLM asked the Secretariat to keep the CCLM regularly informed, given the innovative and rapidly evolving character of the legal aspects relating to the protection of privacy.
25. The CCLM reviewed document CCLM 74/5 entitled “Provision of written information on the activities of the Organization to opposition parties in Member Nations”. The CCLM also had before it a letter, addressed to the Chairman of the CCLM, from a Member Nation in which the withdrawal of this item from the Agenda of the Session was requested. The CCLM decided to maintain the item on the Agenda.
26. The CCLM noted that the specific case which was at the origin of the issue had to be distinguished from the general issue of provision of information on the Organization’s activities to opposition parties in Member Nations.
27. Regarding the general issue of provision of information to opposition parties, the CCLM recommended that the Organization should, broadly speaking, follow the United Nations’ practice in this regard.
28. Keeping the above in mind, in principle the Organization should only provide to an opposition party, upon request, such information as is in the public domain or information that, by its nature, should be so considered. The Organization should not release information of a restricted nature, either because of its actual content, or because it was provided to the Organization with limitations imposed on its release, or on the understanding that it should not be released. The Organization should exercise its discretion in assessing any particular request for information, in light of the above.
29. The CCLM recognized that the primary responsibility for development activities in Member Nations lies with the Governments and the relationship between FAO and a particular country is carried out necessarily through its Government. Consequently, should a request for information by an opposition party be directly linked to a specific decision-making process committing the authorities of the country, that request for information would need to be made by, or channelled through, the Government.
30. Regarding the specific case which was at the origin of the issue, the CCLM recognized that this was a special case which was the object of a number of UN Resolutions and in respect of which a Special Envoy of the Secretary-General was appointed. Consequently, the CCLM called for an ad hoc approach and recommended that the Organization follow the applicable UN Resolutions and proceed in accordance with the course of action taken by the United Nations in this case.
____________________
1 Report of the Ninety-fifth Session of the Finance Committee, 25-29 September 2000, CL 119/13, paragraph 45.
COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS |
Seventy-fourth Session |
Rome, 2 - 3 October 2002 |
COMPOSITION OF THE PROGRAMME AND FINANCE COMMITTEES |
1. At the Hundred and Twenty-second Session of the Council, Rome, 14 November 2001, Members of the Asia and Pacific Region proposed that the existing formulae for the representation of different regions on the Programme and Finance Committees be reviewed. The proposal was supported by Members from other regions. The Council agreed to discuss the matter at its Hundred and Twenty-third Session in 20021.
2. This document presents the provisions of Rules XXVI and XXVII of the General Rules of the Organization regarding the composition and election of the Members of the Programme and Finance Committees and outlines various developments which led to the adoption of these provisions, as well as development which took place subsequently.
3. It is important to emphasize from the outset that the relevant procedures of the General Rules of the Organization, as they stand at present, were adopted in 1977 by the Conference, after considerable work during the period from 1975 to 1977. The issue was considered again, in great detail from 1985 until 1989 and led to the adoption, at the Twenty-fourth Session of the Conference, in November 1987, of Resolution 11/87 entitled “Procedure for the election of the Chairmen and Members of the Programme and Finance Committees”. The terms of this Resolution were recalled again by the Conference at its Twenty-fifth Session in 1989. This document contains extensive references to debates and reports of meetings of the CCLM, the Council and the Conference in order to facilitate consultation and consideration thereof by the Members of the Council.
4. In view of the nature of the issues involved, the Director-General has proposed that, under the terms of Rule XXXIV, paragraph 4 of the General Rules of the Organization, the matter be referred to the Committee on Constitutional and Legal Matters (CCLM). Thus, when considering the item, the Council would have before it the present document and the views of the CCLM thereon. Any views thereon by the CCLM would be without prejudice to any course of action that the Council might wish to take, including seeking further views on the matter by CCLM in light of the decision of the Council.
5. Rule XXVI, paragraph 1 provides that the Programme Committee “shall be composed of eleven Member Nations of the Organization”. Paragraph 3 of this Rule provides that the following procedures apply to the election of its Members:
(a) Member Nations shall present their candidature for election in respect of a specific region as determined by the Conference for the purpose of Council elections.
(b) The Council shall first elect a Chairman from among the designated representatives of the prospective Members of the Committee.
(c) After the election referred to in subparagraph (b) above, the Council shall proceed to the election of the other Members of the Committee, in two stages, making the necessary adjustments to take into account the Member Nation of which the Chairman is a national and the region to which that Member Nation belongs:
(i) the first stage shall be to elect eight Members from the following regions: Africa, Asia and the Pacific, Near East, and Latin America and the Caribbean;
(ii) the second stage shall be to elect three Members form the following regions: Europe, North America, and Southwest Pacific.
(d) Except as provided in subparagraph (b) above, the election of Members of the Committee shall be conducted in accordance with the provisions of paragraphs 9 (b) and 13 of Rules XII of these Rules, one election being held to fill simultaneously all the vacancies occurring in each group of regions specified in subparagraph (c) above”.
6. Rule XXVII, paragraph 1 of the General Rules of the Organization provides that the Finance Committee “shall be composed of representatives of nine Member Nations of the Organization”. Paragraph 3 of this Rule provides that the following procedures apply to the election of its Members:
(a) Member Nations shall present their candidature for election in respect of a specific region as determined by the Conference for the purpose of Council elections.
(b) The Council shall first elect a Chairman from among the designated representatives of the prospective Members of the Committee.
(c) After the election referred to in subparagraph (b) above, the Council shall proceed to the election of the other Members of the Committee, in two stages, making the necessary adjustments to take into account the Member Nation of which the Chairman is a national and the region to which that Member Nation belongs:
(i) the first stage shall be to elect six Members from the following regions: Africa, Asia and the Pacific, Near East, and Latin America and the Caribbean;
(ii) the second stage shall be to elect three Members form the following regions: Europe, North America, and Southwest Pacific.
(d) Except as provided in subparagraph (b) above, the election of Members of the Committee shall be conducted in accordance with the provisions of paragraphs 9 (b) and 13 of Rules XII of these Rules, one election being held to fill simultaneously all the vacancies occurring in each group of regions specified in subparagraph (c) above” .
7. It should be mentioned in this connection that regions for purposes of Council elections are determined by the Conference under Rule XXII, paragraph 10 (b), on the basis of a recommendation of the General Committee under Rule X, paragraph 2 of the General Rules of the Organization.
8. The above provisions of the General Rules of the Organization on the matter, as they stand at present, are the result of a process initiated by the Conference of FAO at its Eighteenth Session, Rome, 8-27 November 1975, by Resolution 3/75 whereby it requested the Council to carry out a study, inter alia, of the composition the Programme and Finance Committee3. At its Sixty-Eighth Session (November 1975) the Council decided to establish, under Article VI-2 of the Constitution, a Working Party to study the matter4. The Working Group held a number of sessions and submitted its First Conclusions to the Seventieth session of the Council (November 1976) and its Report to the Seventy-first Session of the Council (June 1977). The Council endorsed the relevant recommendations of the Working Party and in particular that:
“…
(b) The number of members of the Programme Committee should be increased by four, bringing the total membership to 11 including the Chairman.
(c ) The number of members of the Finance Committee should be increased by four, bringing the total membership to 9 including the Chairman.
…
(f) The Council would elect first the chairmen of the two Committees from among the candidates submitted by their governments.
(g) In electing the members of the two Committees, the Council should bear in mind the principle of securing an equitable geographical distribution on the Committees. To ensure this, the elections to these Committees would be conducted in two stages. The first stage would be to elect 8 members of the Programme Committee and 6 members of the Finance Committee from Africa, Asia and the Far East, Near East and Latin American regions. The second stage would be to elect 3 members of the Programme Committee and 3 members of the Finance Committee form the Europe, North America and South West Pacific regions. The above numbers would of course be adjusted before each stage to take into account the regional affiliation of the two chairmen elected”5.
9. The Council, at its Seventy-first Session, also requested the CCLM to prepare and submit to its next Session the amendments to the Basic Texts that would be required to give effect to the recommendation set forth above.
10. When the CCLM dealt with this question at its Thirty-fifth Session (October 1977), it “agreed that the Council’s recommendations could be reflected by amendments to Rules XXVI and XXVII of the General Rules of the Organization relating to the Programme Committee and the Finance Committee, respectively. However, it felt that certain points were not covered, or were only partially covered, by the Council’s recommendations. In this connection, the CCLM identified in particular the question of the geographical distribution among members of the Committees (…)”. In the course of its debate, “(…) some concern was expressed at the proposed incorporation in the General Rules of the Council’s recommendation on geographical distribution that specified groups of regions for election purposes. To incorporate this concept in the General Rules would constitute a departure from past practice of FAO and other organizations in the United Nations System (…)”6. However, in order to comply with the Council’s request, the CCLM “decided to propose a new paragraph 3 of the Rules to put into effect the Council’s recommendation in this respect”7.
11. The Council at its Seventy-second Session (November 1977) considered draft amendments to Rules XXVI and XXVII of the General Rules of the Organization prepared by the CCLM and the observations put forward by the CCLM, but did not reach any conclusions thereon. However, it may be noted that “with respect to paragraph 3(a), the view was expressed that it was not necessary to provide that nominations of candidates for election should be in respect of a specific region as determined by the Conference for the purpose of Council elections; a specification of regions for election purposes might give rise to problems, particularly if applied in relation to the Finance Committee. This provision might therefore be deleted from the Rules for both the Programme and Finance Committees”8. Finally, the Council “decided that since there had not been enough time for a full discussion of the complex issues involved, the draft amendments to Rules XXVI and XXVII as recommended by the CCLM (…) should be referred to the Conference for consideration at its forthcoming session, together with the observations made during the deliberations of the Council”9.
12. At the Nineteenth Session of the Conference (November/December 1977), when the draft amendments to Rules XXVI and XXVII of the General Rules of the Organization were discussed, the Conference was aware, as reflected on a statement made by the secretariat at the time and a review of the verbatim records, of the fact that the amended rules would not necessarily ensure that each region would be represented on each Committee. However, the general understanding was that, in order to minimize this inconvenience, it was assumed that consultations would be held prior to the elections10.
13. By Resolution 15/77, the Conference adopted the new texts of Rules XXVI and XXVII of the General Rules of the Organization as drafted by the CCLM and forwarded to it by the Council, without amendments. A reference to the principle of geographical distribution was made in a preambular paragraph of the Resolution, as follows:
“(THE CONFERENCE)
…
“Considering that there should be a moderate increase in the total membership of the Programme Committee and of the Finance Committee, and that these Committees should be composed of Member Nations elected by the Council on the basis of equitable geographical distribution, also taking into account the personal merit of the representative that Member Nations would appoint if elected”11.
14. At its Eighty-ninth Session, held in November 1985, the Council was called upon to elect the members of the Finance Committee. When the Council proceeded to the second stage of the election referred to in Rule XXVII.3 (c), there were four candidates for the three seats: two from Europe, one from Southwest Pacific and one from North America. The candidates that received the largest number of votes and were therefore elected were the two candidates from the European region and the candidate from the Southwest Pacific region. Since no representative of the North American region had been elected, the question was raised “whether Rule XXVII.3 (c ) (ii) should be interpreted in such a way as to make it permissible for any one of the three regions not to be represented, when there was at least one candidature from each of those regions”. Following a discussion of the matter, the Council welcomed a suggestion that the CCLM examine those parts of Rules XXVI and XXVII of the General Rules of the Organization that related to the election of the members of the Programme and Finance Committees. Accordingly, the Council “requested the CCLM to examine those parts of Rule XXVI and XXVII of the General Rules of the Organization and to report its findings, including the texts of possible amendments to the Rules that would clarify the question of regional representation on both Committees, to its Session in November 1986”12.
15. The CCLM considered the matter at its Forty-eighth Session in September and October 1986. The CCLM examined the legislative history of Rules XXVI.3 and XXVII.3 of the General Rules of the Organization and other factors relevant to their interpretation, as well as the practice based on these Rules. It “concluded that not only the legislative history of Rules XXVI.3 and XXVII.3 and other factors relevant to their interpretation, but also the practice established over almost a decade tended to show that the present provisions did not impose, nor were intended to impose, a legal obligation on the Council to allocate the seats in accordance with a strict principles that each region that so wished had to be represented”13.
16. The CCLM reaffirmed the concept of a just and equitable geographic representation on the Committees and felt that each region should be represented if it so wished. The CCLM then examined the nature of the amendments to the General Rules of the Organization which could guarantee the representation on the Committees of each region that presented a candidature. The CCLM noted in particular that it would not suffice to amend only Rules XXVI.1 and XXVII.1 or Rules XXVI.3 (c) and XXVII.3 (c). The voting procedures themselves would have to be changed. Under present procedures, voting is in two stages. The first stage is the vote for members from the group of regions comprised by Africa, Asia and the Pacific, the Near East and Latin America and the Caribbean. The second stage is for members of the group comprised by Europe, North America and the South-West Pacific. All vacancies in each group of regions are filled in a single election and the candidates receiving the largest number of votes are elected irrespective of the particular region from which the candidate comes.
17. Three solutions were envisaged. The first would be to hold separate elections for each region seeking representation on the Committees. This would require that a precise allocation of seats among the various regions be determined. The second solution would be to maintain the present system of an election in two stages, but an additional provision would be inserted to guarantee that each region presenting a candidate would have at least one set on each of the two Committees, irrespective of the number of votes received. The third solution would be to change the election procedures so that separate votes would be taken in a first round in order to elect one representative from each region. Subsequently, a vote would be taken to elect the remaining members of the Committees.
18. The CCLM concluded that since these solutions “presupposed some important policy decisions that could only be taken by the Council and, eventually, the Conference, it would not be appropriate at this stage to elaborate any specific detailed amendments to the Basic Texts until precise indications had been given to it by the Council with respect to policy objectives that should be achieved”14.
19. The Council, at its Ninetieth Session, held in November 1986, considered the Report of the Forty-eighth Session of the CCLM. It “reaffirmed the desirability of guaranteeing just and equitable representation on both the Programme Committee and Finance Committee, and considered that each region should be represented if it wished to be. It also considered that such a representation should not entail any increase in the number of members on either Committee”15.
20. In the course of the debate, various opinions were expressed by Members of the Council. In the light thereof, the Council decided that the CCLM should examine in depth the outcome of the Council’s debate, especially the implications of the third solution envisaged and report its recommendations to the Council, which would examine the question further at its Ninety-first Session16.
21. The CCLM at its Forty-ninth Session held in April 1987, “noted first of all that there could be no doubt from the debate which had taken place in the Council that two points were uncontroversial:
(a) it was considered desirable to guarantee just and equitable representation on both the Programme and the Finance Committees, on which each region should be represented if it so wished to be;
(b) such a representation should not entail any increase in the number of members on either Committee”17.
22. The CCLM studied the implications of the third solution mentioned in paragraph 17 above, whereby election procedures would be changed so that separate votes would be taken in a first round in order to elect one representative form each region and, subsequently, a vote would be taken to elect the remaining members of the Committees. The CCLM noted that this solution would guarantee just and equitable representation without changing the number of members, although the solution could be more time-consuming than the present method of election and would leave open a number of delicate questions concerning the distribution of seats18. In doing so, “the CCLM noted that, although in the course of the debate in the Council, the need to amend the Rules governing the Programme Committee was questioned, the Council did not restrict the scope of the CCLM’s study exclusively to the Finance Committee. Indeed, the CCLM deemed that this was logical, since the problems relating to the representation on the Finance Committee and on the Programme Committee were the same and were based on Rules which, subject to purely numerical differences, were identical”19.
23. The CCLM considered that, in order to introduce a new voting procedure, the main provisions that would have to be modified were Rules XXVI.3(c) and XXVII.3 (c). If the method of election were to be changed in accordance with the above solution, the election procedure would have to take place in two different stages. The first stage would comprise seven separate elections, one for each region. The second stage would be to fill simultaneously the remaining sets (four for the Programme Committee and two for the Finance Committee).
24. The CCLM reached the preliminary conclusion that were the present Rules to be amended, it would be opportune to choose those solutions which would preserve the present balance between the two groups of regions (Africa, Asia and the Pacific, Near East, and Latin America and the Caribbean on the one hand; Europe, North America and South-West Pacific on the other). Moreover, it would be desirable that an equitable rotation be achieved among the regions that would fill the seats that remained after each region had been assured of one seat on the basis of a first stage in the election procedure. In addition, it would be desirable to achieve an equitable rotation among the countries constituting each region.20
25. However, the CCLM was of the view that, before it could take further action on the matter, the Council would have to take a decision “on the basic issue whether the objective of ensuring representation for each region in the Programme and Finance Committee should be brought about through improvement of the existing practices for better coordination among the region, or through an amendments of the existing Rules”21.
26. The Council, at its Ninety-first Session (June 1987), noted the views and observations in the Report of the Forty-ninth Session of the CCLM. In the course of the Council’s debate, while all Members stressed the important of the principle of just and equitable representation of all regions on both the Programme Committee and the Finance Committee, there was a difference of opinion as to whether the Rules required amendment or whether the foregoing principle could be achieved through improved coordination22. Consequently,
“(…) Since no consensus could be reached on the action to be taken, the Council requested the CCLM to continue studying the problem, and expressed the hope that further reflection on this matter might make it possible to reach a consensus at its Ninety-second Session”.23
27. The CCLM, at its Fiftieth Session, held in October 1987 reached a consensus on a compromise solution whilst noting that if the solution envisaged did not prove to be effective, the matter would have to be reconsidered in due course in order that a more satisfactory solution be found. Accordingly, the CCLM “agreed to submit to the Council a draft Conference Resolution on the matter which took full account of the conclusions reached by the CCLM at its earlier sessions as well as the discussions in the Council. The CCLM recommended unanimously that the Council transmit the following draft Resolution to the Conference for consideration at its forthcoming session:
DRAFT RESOLUTION FOR THE CONFERENCE
PROCEDURE FOR THE ELECTION OF THE CHAIRMEN AND MEMBERS OF THE PROGRAMME AND FINANCE COMMITTEES
THE CONFERENCE,
Noting that the question of the interpretation of Rules XXVII.3 (c) (ii) of the General Rules of the Organization had arisen in the course of the election of the Chairman and members of the Finance Committee at the 89th Session of the Council (November 1985) and that the Council had referred this matter to the Committee on Constitutional and Legal Matters (CCLM) which considered it at its 48th Session (September-October 1986);
Noting further that the matter had been considered by the Council at its 90th Session (November 1986), 91st Session (June 1987) and 92nd Session (November 1987);
Concurring with the recommendation of the Committee on Constitutional and Legal Matters endorsed by the Council at its 92nd Session:
Decides:
1. to affirm the need for just and equitable representation of the various regions on the Programme Committee and the Finance Committee;
2. to underline that an essential element of such representation is that all regions that so wish are in fact represented on the Committees; and
3. that members of the Council should bear the above in mind, as well as the importance of securing equitable rotation among the countries constituting each region, when electing the Chairmen and members of the two Committees in accordance with Rules XXVI.3 and XXVII.3 respectively”24.
28. The Council, at its Ninety-second Session held in November 1987, “considered that the principles embodied in the solution proposed by the CCLM were of paramount importance. Accordingly, it endorsed the CCLM proposal and decided to transmit the draft Resolution to the Conference”25.
29. The Conference, at its Twenty-fourth Session held in November 1987, “examined in detail the considerations set forth in the report of the Ninety-second Session of the Council as well as the draft resolution submitted to it. There was a general support for the draft resolution. However, a number of Member Nations regretted that the resolution did not, in their view, guarantee equitable geographic distribution in the Programme Committee and on the Finance Committee. It was also pointed out that the Council had noted that if the solution envisaged in its draft resolution did not prove to be effective, the matter would have to be reconsidered in due course in order that a more satisfactory solution be found”26.
30. The Conference also considered an alternative proposal presented during the course of the debate entailing the amendment of Rule XXVII of the General Rules of the Organization. The proposal envisaged a small increase in the number of members of the Finance Committee and a modification of the election procedure. The first stage would be the election of one member from each region other than the region of the Chairman. The second stage would be the election of the other members of the two groups of regions as now defined. A mechanism would be introduced to ensure that a specific number of members of each of the two groups would be elected.
31. The Conference felt “that the alternative proposal contained a number of elements that merited consideration but that, since it raised certain important substantive and legal issues, it was not ripe for examination in depth”27. Consequently, the “Conference decided to transmit the substance of the alternative proposal for study by the Council which should, as appropriate, seek the advice of the Committee on Constitutional and Legal Matters”28.
32. The Conference also decided to adopt the Resolution which had been submitted to it by the Council29.
33. The question of appropriate regional representation arose again following the election of the Chairmen and Members of the Programme and Finance Committee by the Council, at its Ninety-third Session, held in November 1987, when only one member from the region of Africa was elected. In the course of the discussion which ensued with respect to “the election of the eight Programme Committee members for the regions of Africa, Asia, Near East, and Latin America and the Caribbean, many members expressed the view that the region of Africa was under-represented on the Committee. These Member Nations suggested that a way should be found to ensure that adequate regional representation be guaranteed in future for both the Programme Committee and the Finance Committee”30.
34. “Accordingly, the Council agreed on the need to review, at its November 1988 Session, those parts of Rules XXVI and XXVII of the General Rules of the Organization that related to the election of members of the Programme and Finance Committee in order to guarantee appropriate regional representation on each Committee. The Council also expressed the view that in the light of the deliberations that would take place at its Ninety-fourth Session, the Committee on Constitutional and Legal Matters (CCLM) should prepare the appropriate legal provisions for submission to its June 1989 Session”31.
35. At its Ninety-fourth Session, in November 1988, the Council reviewed the matter again. The Council recalled in detail that the issue had been under discussion for quite some time and the reasons for that. In the ensuing discussion, “the view was expressed by many members that the key to resolving the kind of problem which had arisen was to improve coordination within and among regions” and emphasized the usefulness of Conference Resolution 11/87 adopted at the Twenty-fourth Session of the Conference. In this context, a number of Members “underlined the complexity of the issues involved, the difficulty of finding a mathematical solution and the danger that any mathematical solution would be inflexible and might not be suitable to meet constantly evolving situations. There was also the danger that modification of the existing rules might have undesirable repercussions for other Statutory Bodies”.32 On the other hand, many members expressed the view that the fact that one of the regions was, at that time, under-represented on the Programme Committee demonstrated that coordination among regions was not satisfactory and that Conference Resolution 11/87 was not sufficient to guarantee just and equitable representation of the various regions and that the matter should be referred again to the CCLM.
36. In view of the fact that many members had expressed the wish to refer the matter to the CCLM for further study, the Council requested the CCLM to review the matter once again and to report to the Council at its next session. “In doing so, it was underlined that the basis for reaching an effective solution was that of regional understandings. Care had to be taken to give due regard to the consequences which any proposals might entail for other bodies of FAO. Finally, the CCLM should seek the most effective and desirable means of achieving the objective of just and equitable representation, taking full account of the various views expressed by the Council, without prejudice to the type of solution which the CCLM might recommend”33.
37. The CCLM considered the matter again at its Fifty-second Session, held in May 1989. The CCLM reviewed first in great detail the manner in which the problem had arisen almost four years ago, and the work which it carried out under the close review of the Council and which led to the adoption of Conference Resolution 11/87. The Committee noted that a similar problem had arisen at the Ninety-third Session of the Council which led to another review of the whole matter by the Council and the above request to the CCLM.
38. The CCLM explored three possible orientations which could be adopted by the Council and the Conference with a view to ensuring conformity with Conference Resolution 11/87, entitled “Procedure for the Election of the Chairmen and Members of the Programme and Finance Committees”, in particular with following criteria set out therein:
(i) the need for just and equitable representation of the various regions on the Programme Committee and the Finance Committee;
(ii) that the essential element of such representation was that all regions that so wish are in fact represented on the Committees;
(iii) that members of the Council should bear the above in mind, as well as the importance of securing equitable rotation among the countries constituting each region, when electing the Chairmen and the members of the two Committees in accordance with Rules XXVI.3 and XXVII.3 respectively.
39. The first orientation would consist in expanding the criteria set forth in the Conference Resolution by adding, for example, the need for substantial representation of regions that were priority areas for development assistance, but without changing the existing balance as set forth in sub-paragraphs (c) (i) and (c)(ii) of Rules XXVI.3 and XXVII.3. The second orientation would be to introduce a greater degree of formality into the procedures for reaching regional understandings among and within regions by establishing a pre-election and nomination procedure which could be provided for in a Conference Resolution. A third possible orientation would be to amend the General Rules of the Organization in order to introduce a formal procedure for regional understandings.
40. The CCLM decided to pursue the second orientation in the light of Conference Resolution 11/87 and the two guiding principles expressed by the Council at its Ninety-fourth Session held in November 1988, i.e. the concept of regional understandings and due regard to the consequences of any proposal for other FAO bodies, whilst seeking the most effective and desirable means of achieving the objective of just and equitable representation. The Committee suggested that a new Conference Resolution could be adopted in order to complete Conference Resolution 11/87. Such a Resolution would refer to Conference Resolution 11/87 whilst introducing a pre-election and nomination procedure, consisting of two stages: first pre-election consultations and coordination among the groups of regions referred to in Rule XXVI.3 (c) and Rule XXVII.3 (c) of the General Rules of the Organization and, second, a nomination procedure for each region.
41. The purpose of the pre-election procedure would be to allow each group of regions (i.e. the group in sub-paragraph (c) (i) and the group in sub-paragraph (c) (ii) to reach an understanding on an allocation of seats among them in respect of both the Programme Committee and the Finance Committee prior to each election of members of those Committees. This understanding would take account of current practices and would also allow for an adaptation of these practices to reflect changing needs. Following this inter-regional understanding, each region would agree on the Member or Members to be nominated from that region. The number of nominations would correspond to and would not exceed the number of seats allocated pursuant to the understanding for that election. This procedure would meet the criteria set forth in Conference Resolution 11/87 and the guiding principles expressed by the Council and, in addition, would avoid the necessity of amending the General Rules of the Organization.
42. The Council, at its Ninety-ninth Session in June 1989 considered the matter again in some detail. On that occasion, the Council was apprised of the views of the Director-General on the proposal of the CCLM and given the fact that the matter had become a long-standing issue. In particular, the Director-General was concerned at the approach recommended by the CCLM for two reasons. First, he queried the appropriateness of the Conference giving instructions or guidance to the regions on how to conduct their own consultations and coordination. Secondly, he was concerned about the possible effects of a system of pre-election and nomination, which might tend to accentuate divisions within and among regions rather than providing a workable solution to the problem of equitable representation.
43. Following a debate on the matter, the “Council agreed that it would be preferable to maintain the flexibility inherent in the present system and not to introduce any modifications thereto. In doing so, it recalled the necessity of ensuring sufficient consultation and coordination both within and between regions in order to respect the criteria set forth in Conference Resolution 11/87”34.
44. The Conference, at its Twenty-fifth Session, reviewed the matter again. In particular, the Conference considered the proposal of the CCLM and the Council thereon. In this regard, the Conference noted that “the great majority of members of the Council had not favoured the introduction of measures or amendments which would formalize the procedures for reaching regional understandings. They had considered that the present provisions, combined with Resolution 11/87, were both satisfactory and sufficient. They had underlined that the problems which had arisen in 1985 and 1987 were exceptional and that the present system had been working quite satisfactorily for many years. Each region should resolve any problems which might arise for it in the manner which it deemed best”.
45. In conclusion of the debate, “the Conference agreed that it would be preferable to maintain the flexibility inherent in the present system and not to introduce any modification hereto. In doing so, it recalled the necessity of ensuring sufficient consultation and coordination both within and between regions in order to respect the criteria set forth in Resolution 11/87, the text of which is given in Appendix G to this Report. The Conference expressed the hope that in the forthcoming elections to be held at the next session of the Council this would result in the just and equitable representation called for in Resolution 11/87. At that time, it could be seen whether further action would be required”.35
46. The CCLM is invited to review the document and submit such views thereon as the Committee would deem appropriate, in order to facilitate consideration of the matter at the forthcoming Hundred and Twenty-third session of the Council.
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1 The interventions made at the debate which took place at the Hundred and Twenty-second Session of the Council, Rome, 14 November 2001, are reproduced in document CL 122/PV/1.
2 It may be noted that, at each Conference and Council meeting, a list is provided of the current members of, inter alia, the Programme Committee and the Finance Committee. This list is also reproduced on the penultimate page of each report of the Council and the Conference.
3 Conference Resolution 3/75, Part III.
4 Report of the Sixty-eighth Session of the Council, Rome, (November 1975), Paragraphs 11 and 12.
5 Report of the Seventy-first Session of the Council, June 1977, paragraph 237.
6 Report of the Thirty-fifth Session of the CCLM, CL 72/5, October 1977, paragraphs 6 and 9.
7 Ibidem. The CCLM affirmed that “it was aware that ‘equitable geographical distribution’ would not mean that all regions included in each of the two groups would be equally represented, particularly on the Finance Committee where four regions would be sharing six seats. It considered that the distribution of seats by region within each group of regions would have to be determined in the light of consultations among the Member Nations concerned and, eventually, by the results of the election”. Report of the Thirty-fifth Session of the CCLM, CL 72/5, October 1977, paragraph 10.
8 Report of the Seventy-second Session of the Council, November 1977, paragraph 110.
9 Report of the Seventy-second Session of the Council, November 1977, paragraph 113.
10 C 77/III/PV 2, p. 22.
11 Report of Nineteenth Session of the Conference, November-December 1977, paragraph 287.
12 Report of the Eighty-ninth Session of the Council, November 1985, paragraphs 8 and 9.
13 Report of the Forty-eigth Session of the CCLM, September and October 1986, document CL 90/5, paragraph 20.
14 Report of the Forty-eighth Session of the CCLM, September and October 1986, document CL 90/5, paragraphs 27-28.
15 Report of the Ninetieth Session of the Council, November 1986, paragraph 176.
16 Report of the Ninetieth Session of the Council, November 1986, paragraph 178.
17 Report of the Forty-ninth Session of the CCLM, April 1987, document CL 91/5, paragraph 6.
18 Report of the Forty ninth Session of the CCLM, April 1987, document CL 91/5, 91/5, paragraphs 18-19.
19 Report of the Forty-ninth Session of the CCLM, April 1987, document CL 91/5, paragraph 20.
20 Report of the Forty-ninth Session of the CCLM, April 1987, document CL 91/5, paragraph 25.
21 Report of the Forty-ninth Session of the CCLM, April 1987, document CL 91/5, paragraph 26.
22 Report of the Ninety-first Session of the Council, June 1987, paragraph 294.
23 Report of the Ninety-first Session of the Council, June 1987, paragraph 295.
24 Report of the Fiftieth Session of the CCLM, CL 92/5, paragraph 10.
25 Report of the Ninety-second Session of the Council, November 1987, paragraph 95.
26 Report of the Twenty-fourth Session of the Conference, November 1987, paragraph 322.
27 Report of the Twenty-fourth Session of the Conference, November 1987, paragraphs 323 and 324.
28 Report of the Twenty-fourth Session of the Conference, November 1987, paragraph 325.
29 Report of the Twenty-fourth Session of the Conference, November 1987, paragraph 325.
30 Report of the Ninety-third Session of the Council, November 1987, paragraph 6.
31 Report of the Ninety-third Session of the Council, November 1987, paragraph 7.
32 Report of the Ninety-fourth Session of the Council, November 1988, paragraphs 231-232.
33 Report of the Ninety-fourth Session of the Council, November 1988, paragraph 235.
34 Report of the Ninety-fifth Session of the Council, June 1989, paragraph 243.
35 Report of the Twenty-fifth Session of the Conference, November 1989, paragraphs 279 and 281.
Membership of Regional Economic Integration Organizations
Add a new Rule 1.3 to the Rules of Procedure, and re-number current Rule 1.3 as Rule 1.4:
“Membership shall also comprise regional economic integration organizations members of either FAO or WHO that notify the Director-General of FAO or WHO of their desire to be considered Members of the Commission”.
Add a new Rule to the Rules of Procedure after Rule I to read as follows:
“Rule II - Member Organizations
1. A Member Organization shall exercise membership rights on an alternative basis with its Member States that are Members of the Commission in the areas of their respective competence.
2. A Member Organization shall have the right to participate in matters within its competence in any meetings of the Commission or its subsidiary bodies in which any of its Member States is entitled to participate. This is without prejudice to the possibility for the Member States to develop or support the position of the Member Organization in areas within its competence.
3. A Member Organization may exercise on matters within its competence, in any meetings of the Commission or any subsidiary body of the Commission in which it is entitled to participate in accordance with paragraph 2, a number of votes equal to the number of its Member States which are entitled to vote in such meetings and present at the time the vote is taken. Whenever a Member Organization exercises its right to vote, its Member States shall not exercise theirs, and conversely.
4. A Member Organization shall not be eligible for election or designation, nor to hold office in the Commission or any subsidiary body. A Member Organization shall not participate in voting for any elective places in the Commission and its subsidiary bodies.
5. Before any meeting of the Commission or a subsidiary body of the Commission in which a Member Organization is entitled to participate, the Member Organization or its Member States shall indicate in writing which, as between the Member Organization and its Member States, has competence in respect of any specific question to be considered in the meeting and which, as between the Member Organization and its Member States, shall exercise the right to vote in respect of each particular agenda item. Nothing in this paragraph shall prevent a Member Organization or its Member States from making a single declaration in the Commission and each subsidiary body in which a Member Organization is entitled to participate for the purposes of this paragraph, which declaration shall remain in force for questions and agenda items to be considered at all subsequent meetings, subject to such exceptions or modifications as may be indicated before any individual meeting.
6. Any Member of the Commission may request a Member Organization or its Member States to provide information as to which, as between the Member Organization and its Member States, has competence in respect of any specific question. The Member Organization or the Member States concerned shall provide this information on such request.
7. In cases where an agenda item covers both matters in respect of which competence has been transferred to the Member Organization and matters which lie within the competence of its Member States, both the Member Organization and its Member States may participate in the discussions. In such cases the meeting, in arriving at its decisions,1 shall take into account only the intervention of the party which has the right to vote.2
8. For the purpose of determining a quorum, as specified in paragraph 6 of Rule IV, the delegation of a Member Organization shall be counted for a number equal to the number of its Member States which are entitled to participate in the meeting, to the extent that it is entitled to vote under the agenda item in respect of which the quorum is sought.”
Renumber the subsequent Rules accordingly.
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1 The word ‘decisions’ should be understood to mean both voting and situations where a decision is taken by consensus.
2 The above is without prejudice to the question of whether or not the views of the party not having the right to vote shall be reflected in the report of the meeting. Where the views of the party not having the right to vote are reflected in the report, the fact that they are the views of the party not having the right to vote shall also be reflected in the report.