PC 90/6 a) |
|
PC 90/6 a) |
Ninetieth Session |
Rome, 15-19 September 2003 |
Clarifications on some aspects of the FAO/JIU relationship |
II. Early Historical Developments
III. General Legal Considerations
IV. Consideration of the Reports of the JIU by FAO’s Governing Bodies
1. Paragraph 73 of the Committee’s report of its last session in May 2003 (when considering JIU reports) reads as follows: “The Committee addressed these reports, but did not conclude its discussion. It requested the Secretariat to provide a document to its next session to enlighten it on the institutional relationship of the JIU and the Organization, and the revised procedure for handling recommendations addressed to Legislative Bodies. In the light of the document, the Committee will examine the above-mentioned reports at its September 2003 session”.
2. The present document has been prepared in response to the above request, incorporating advice from the FAO Legal Office.
3. The Joint Inspection Unit was created on an experimental basis under General Assembly Resolution 2150 (XXI) of 4 November 1966, and extended thereafter by other Resolutions of the General Assembly. By its Resolution 31/192 of 22 December 1976, the General Assembly decided to establish the Joint Inspection Unit on a more permanent basis with effect from 1 January 1978, in accordance with the Statute which it approved at the time. The Resolution invited the organizations within the United Nations system to notify the Secretary-General of the acceptance of the Statute as soon as possible, and to take appropriate action for the use of the services of the Joint Inspection Unit.
4. The Statute of the Joint Inspection Unit contains a series of provisions, of which the following are worth recalling:
Article 1, paragraph 2: “The Unit shall perform its functions in respect of and shall be responsible to the General Assembly of the United Nations and similarly to the competent legislative organs of those specialized agencies and other international organizations within the United Nations system which accept the present statute (all of which shall hereinafter be referred to as the organizations). The Unit shall be a subsidiary organ of the legislative bodies of the organizations”.
Article 1, paragraph 3: “Acceptance of the present statute by an organization shall be notified in writing by its executive head to the Secretary-General of the United Nations”.
Article 5, paragraph 4: “Without prejudice to the principle that external evaluation remains the responsibility of appropriate intergovernmental bodies, the Unit with due regard to its responsibilities, may assist them in carrying out their responsibilities for external evaluation of programmes and activities. On its own initiative or at the request of the executive heads, the Unit may also advise organizations on their methods for internal evaluation, periodically assess these methods and make ad hoc evaluations of programmes and activities”.
Article 5, paragraph 5: “The inspectors may propose reforms or make recommendations they deem necessary to the competent organs of the organizations. They shall not, however, have the power of decision, nor shall they interfere in the operations of the services they inspect”.
Article 10, Paragraph 4 (dealing with the handling of reports):
“(c) Upon receipt of reports, the executive heads or heads concerned shall take immediate action to distribute them, with or without their comments, to the States members of their respective organizations;
(d) When a report concerns only one organization, the report and comments thereon on the executive head shall be transmitted to the competent organ of that organization not later than three months after receipt of the report for consideration at the next meeting of the competent organ. (...);
(e) When a report concerns more than one organization, the respective executive heads shall, normally within the framework of the Administrative Committee on Co-ordination1, consult with one another and, to the extent possible, co-ordinate their comments. The report, together with the joint comments and any comments of the respective executive heads on matters that concern their particular organizations, shall be ready for submission to the competent organs of the organizations not later than six months after receipt of the Unit’s report for consideration at the next meeting of the competent organs concerned. Should, in exceptional cases, more than six months be required for consultations, with the result that comments would not be ready for submission to competent organs at the next meeting following the six-month period, an interim submission shall be made to the competent organs concerned explaining the reasons for the delay and setting a firm date for the submission of the definitive comments;
(f) The executive heads of the organizations concerned shall inform the Unit of all decisions taken by the competent organs of their organizations on reports of the Unit”.
Article 12: “Executive heads of organizations shall ensure that recommendations of the Unit approved by their respective competent organs are implemented as expeditiously as possible. Such implementation may be subject to verification by the competent organs of the organization, which may also request the Unit to issue follow-up reports. The Unit may also prepare such reports on its own initiative”.
5. At its 70th Session in 1976, the Council was informed that the Joint Inspection Unit was about to be established by the General Assembly on a permanent basis, in accordance with a Statute being drawn up. The Council confirmed support in principle to the Unit but requested the Programme and Finance Committees to examine the Statute, the implications of its acceptance by FAO, as well as proposals by the Director-General regarding the future relationship between FAO and the Unit and to submit their recommendations to its 71st Session (Cf. Report of the 70th Session of the Council, Paragraphs 85 and 86).
6. The question of the acceptance of the Statute of the JIU was examined in detail by the above Committees and by the Committee on Constitutional and Legal Matters.
7. At its Thirty-second Session held in April and May 1977, the Programme Committee supported generally the proposal that FAO should accept the Statute of the JIU. However, this Committee expressed reservations as to the provision whereby the JIU should be considered a “subsidiary organ” of the legislative bodies of the Organization. Furthermore, it “agreed that the second sentence of Article 12 was inappropriate and unwarranted as it represented an infringement on the authority of governing bodies and the constitutional relationship between these bodies and their executive heads. The Committee recommended that the Council record its dissatisfaction with the wording of this provision” (Cf. Report of the Thirty-second Session of the Programme Committee, 25 April – 6 May 1977, Doc CL 71/4, paragraph 2.139). The Programme Committee requested the CCLM to review the matter.
8. The Finance Committee, for its part, at its 39th Session, held from 25 April to 9 May 1977, expressed similar reservations. It expressed the view that the JIU could not be considered a “subsidiary organ” of the Council or Conference. It also considered that “the injunction in Article 12 to the effect that implementation by executive heads of JIU recommendations ‘may be the subject of verification by competent organs of the organizations’ was a gratuitous one, all executive heads being bound by the constitutions of their organizations in respect of all their relations with their governing bodies. While the Committee realized that at this stage no amendments in the Statute could be proposed, it recommended that the Council, if it were to propose acceptance of the Statute, should record its reservation about the propriety of this particular provision” (Cf. Report of the 39th Session of the Finance Committee, 25 April- 9 May 1977, Doc. CL 71/4, paragraph 3.95). The Finance Committee also requested that the matter be referred to the CCLM.
9. The CCLM considered the matter at its 34th Session, from 2 to 5 May 1977 essentially from the point of view of the constitutional procedure to be applied by FAO for accepting the Statute and from the point of view of whether Article 1, paragraph 2 of the Statute was compatible with the Constitution of FAO.
10. As to the first question, the CCLM expressed the view that acceptance of the Statute must be referred to the Conference, as this was a matter which fell within the scope of Article XII, paragraph 2 of the Constitution, providing that agreements defining the relations between the Organization and the United Nations shall be subject to the approval of the Conference. As regards Article 1, paragraph 2 of the Statute, “the CCLM was provided with background information concerning the discussions which had taken place at the inter-agency level, and in the Fifth Committee of the General Assembly prior to the adoption of the Statute. It took note of the fact that it had been the Joint Inspection Unit itself which had advocated the designation of the Unit as a “subsidiary organ” of the General Assembly, and presumably also of the legislative bodies of the organizations, and that neither the Administrative Committee on Coordination (ACC) nor the Advisory Committee on Administrative and Budgetary Questions (ACABQ) had submitted proposals to this effect. In opposing such designation and finding no precedent for it, the ACABQ had in fact proposed that the Joint Inspection Unit be accorded the same position in relation to the General Assembly and, as appropriate, the governing bodies of the participating organizations, as had been accorded to the International Civil Service Commission. During its consideration of this particular provision in the Statute, the Fifth Committee had been informed that some of the organizations might encounter difficulties in accepting its for constitutional reasons” (Cf. Report of the 34th Session of the CCLM, paragraph 50).
11. The CCLM was of the opinion that the Joint Inspection Unit, as established by the General Assembly, was outside the scope of Article VI paragraph 2 of the FAO Constitution and that the Constitution clearly did not contain any provision under which it would be possible to consider the Unit as a subsidiary body of FAO’s governing bodies. The CCLM was informed of, and entirely supported the opinion expressed by the Programme Committee that a body such as JIU could not be both independent of, and subsidiary or subordinate to, the governing bodies of FAO” (Cf. Report of the 34th Session of the CCLM, paragraph 52).
12. At its 71st Session, in June 1977, the Council, after having considered in detail the views of the above Committees, supported the continuation of the Joint Inspection Unit and FAO’s collaboration with it as a participating organization. It recommended to the Conference that it accept the Statute of the JIU, subject to the understanding that the Organization should reserve its position regarding Article 1, paragraph 2 of the Statute.
13. At its 19th Session, held in November-December 1977, by Resolution 11/77, the Conference authorized “the Director-General to accept on behalf of FAO the Statute of the Joint Inspection Unit, it being understood that the notice of acceptance provided for in Article I, paragraph 2 of the Statute, shall contain an interpretative declaration to the effect that, for constitutional reasons, the Joint Inspection Unit will not be considered as a subsidiary organ of the legislative bodies of FAO”. The above was duly reflected in the letter of acceptance of the Statute of the JIU by the Director-General.
14. It flows from the provisions of the Statute of the Joint Inspection Unit and the conditions of acceptance of the jurisdiction of the Joint Inspection Unit by the FAO Conference that the so-called “legislative bodies” of the Organization are under a general obligation to examine the recommendations of the JIU, especially those regarding those bodies, in accordance with a general requirement of due diligence. This is consistent with the spirit of a number of provisions of the Statutes, e.g. Article 10, which reveal a clear intent on the part of the parties concerned to ensure that the recommendations of the JIU are effectively considered and implemented, subject of course to the prerogatives of the Governing Bodies of the Organization. The fact that when accepting the Statute of the JIU, the Conference approved an interpretative declaration to the effect that the Unit could not be considered a subsidiary organ of the legislative bodies of FAO, does not change this general position.
15. Seen in this light, a systematic situation where the Programme and Finance Committees would merely take note of the reports of the JIU and recommendations thereof, might not be fully consistent with the obligations undertaken by FAO vis-ą-vis the JIU. There could, however, be limited cases where the Programme and Finance Committees and, subsequently, the Council may limit themselves to taking note of particular reports which, while containing specific recommendations to the Governing Bodies of the Organization, are not considered by these bodies to be of particular interest. In fact, as was recalled above when accepting the Statute of the JIU, the Conference expressly requested the Director-General to submit an interpretative declaration to the effect that the Unit could not be considered a subsidiary organ of the legislative bodies of FAO, preserving fully the autonomy of those bodies when examining the reports of the JIU and attendant recommendations and deciding to take such action as they deem fit.
16. At its 82nd Session of November/December 1982, according to the established practice at that time, the Council considered reports of the JIU that had been referred to it, together with the views of the Programme and Finance Committees. Some concerns were expressed about the then prevailing arrangements, as follows: “During the discussion, a certain number of members expressed concern about the volume of JIU documentation, the ensuing cost of processing and distribution, as well as the demands made on the time of the Council as well as of the Programme and Finance Committees. These same members made various suggestions to alleviate the work of the Council and the two competent committees in this respect. In particular, it was suggested that consideration be given to making available to the Council and the two Committees summaries containing recommendations and extracts from each report of the JIU which were of direct concern to FAO, in addition to the full texts, with the Director-General’s comments. It was also suggested that periodic reports be submitted to the Council on the follow-up of recommendations. The Council requested the Programme and Finance Committees to consider this matter at their next sessions and submit their recommendations to the Council” (Cf. Report of the 82nd Session of the Council, paragraph 90).
17. At their Joint Session of April 1983, the Programme and the Finance Committees (Cf. Report of the Joint Session of the Programme and Finance Committees, Doc. CL 83/4, April 1983, paragraph 1.13) “agreed to recommend that the Council adopt the following procedure, which would not only facilitate the task of the Council, but also reduce the present processing and distribution costs from about US$ 80 000 to about US$ 40 000 per biennium:
“(a) JIU reports would be submitted in their entirety to the two Committees with the comments of the Director-General, and/or the ACC, as appropriate (as at present);
(b) The comments of the two Committees would be submitted to the Council as part of their reports to the Council (as at present);
(c) JIU reports would be available to the Council as INF documents only”.
18. At its 84th Session, in June 1983, the Council, after some discussion, established the following procedures for handling JIU Reports:
(a) JIU reports would no longer be circulated as Council documents;
(b) the Joint Inspection Unit should be requested to provide a summary of each report which could be provided to the Council together with the comments of the Director-General and/or the ACC and the views of the Programme and Finance Committees;
(c ) the Programme and Finance Committees would continue to review the full JIU reports as at present and report thereon to the Council. Their reports would contain reference to the relevant elements of the JIU recommendations and to the comments of the Director-General and/or the ACC;
(d) full JIU reports, as well as comments of the Director-General and/or the ACC would be available as required to the Council as INF documents;
(e) the Council could at its discretion refer to any part of JIU reports whether or not referred to in the above-mentioned summaries or comments” (Cf. Report of the 84th Session of the Council, June 1983, paragraph 253).
19. These procedures have been followed since 1983.
20. At its 78th Session, in September 1997, the Programme Committee “felt that it was timely for the process of intergovernmental consideration of JIU reports in FAO to be reviewed” and “agreed to return to the subject at its next session to address current arrangements and advise the Council accordingly”. At the Joint Meeting of 6 May 1998, the Programme and Finance Committees considered the matter on the basis of a document of the Secretariat. The Committees confirmed the pertinence of the current arrangements for consideration of JIU reports in FAO intergovernmental fora, as established by the Council (Cf. CL 115/4, paragraph 15 to 18). In order to facilitate consideration in each Committee, the Committees agreed that, at the beginning of each session, individual members should communicate to their respective Chairperson their interest in discussing specific JIU reports listed on the agenda. The Council, at its 115th Session, in November 1998, “took note that the Joint Meeting of the Programme and Finance Committees reviewed the current arrangements for the handling of JIU Reports, as were established by the Council (...) and accepted their recommendation to leave these arrangements unchanged” (Cf. Report of the 115th Session of the Council, paragraph 63).
21. The matter was considered further, in 2002, in the light of a proposed enhanced follow-up system by the JIU. At the Joint Meeting of May 2002, the Programme and Finance Committees considered a document entitled “Reporting System on JIU Recommendations,” based on proposals that had been made by the JIU and endorsed by the General Assembly of the United Nations (JM 02.1/4). In particular, it was felt that the impact of a given JIU report on the participating organizations clearly depended on two critical factors: (a) that the report be given active consideration and concrete action on the recommendation be taken by the pertinent legislative organ, and (b) there should be effective implementation of the approved/accepted recommendations, accompanied by reporting on the implementation measures and analysis of the effects of such measures. In this context, the JIU had underlined a lack of specific legislative action on its recommendation and the fact that “legislative bodies” often limited themselves to taking note of the recommendations and conclusions of reports, without clearly expressing whether they are approved. A number of proposals to enhance the effectiveness of the system were made, including forms for the Director-General’s comments on the reports and for annual monitoring reporting on JIU recommendations.
22. The Committees endorsed the proposed modalities for an enhanced reporting system on JIU recommendations as set out in the document and the standard forms, and welcomed the fact that these had been developed in consultation with the Unit itself and with the intent of responding to the expectations of both the JIU and the General Assembly. At its 123rd Session the Council noted “that the Joint Meeting also addressed the enhanced reporting system on Joint Inspection Unit (JIU) Recommendations, which the Council endorsed” (Cf. Report of the 123rd Session of the Council, 28 October-1 November 2002, paragraph 73).
23. The enhanced reporting system requires the following approach on all reports which are submitted to the Committees:
24. The format for the Director-General’s comments is now being used for all reports sent to FAO for action by the JIU.
25. To facilitate consideration of the reports by the two Committees, it is proposed that a simple cover page should be added, pointing to the recommendations on which the Committees are expected to react formally (on behalf of the FAO Council), vs. other aspects which may be for information and noting.
26. In addition, in order to streamline consideration of JIU reports, minimize potential duplication and avoid wasting precious time at the disposal of the Committees, it is suggested that the Secretariat could consult beforehand with the respective Chairpersons to assign reports scheduled for the sessions to either Committee, depending on the subject matter (not precluding of course, cases of needed consideration by both Committees).
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1 Now Chief Executives Board (CEB)