1. The Legal Counsels of both FAo and WHO have stated that in their opinion the Commission has authority under the existing terms of the statutes to elaborate and adopt advisory codes of practice. This opinion is based on the following considerations.
2. The terms of reference of the Codex Alimentarius Commission are defiened in Article I of its Statutes which consists of an introductory clause and five paragraphs specifying the purposes of the Joint FAO/WHO Food Standards Programme. The introductory clause provides that the Commission shall be responsible for making proposals to, and shall be consulted by the Directors-General of the two Organizations on all matters pertaining to the implementation of the Food Standards Programme. This provision is qualified by a reference to Article 5 of the Statutes which authorizes the Commission to make recommendations to the governing bodies of the two Organizations through the Directors-General. The provisions of Article 5 are further spelt out in Rule VIII of the Commission's Rules of Procedure. The finalization of standards, followed by their publication in the Codex Alimentarius, is an integral part of the terms of reference of the Commission, in pursuance of Article 1 (d) of its statutes. Standards by their very nature are recommendations addressed to governments and, in effect, they are binding on those governments which have formally accepted them. Accordingly, in the opinion of the Legal Counsels.
the Codex Alimentarius Commission has authority to submit to governments (thorugh the Directors-General) recommendations pertaining to the implementation of the Joint FAO/WHO Food Standards Programme, as defined in Article 1 of its statutes;
since the Commission has authority to adopt standards that may become binding on governments, it has a fortiori the power to elaborate and adopt guidelines in the form of codes of practice which are of a purely advisory nature.
3. On the question of drawing a distinction between codes of hygienic practice and other codes of practice, as for example codes of technological practice, the Legal Counsels are of the opinion that in paragraph (a) of Article 1 of the Commission's statutes, the protection of the health of the consumer and the ensuring of fair practices in the food trade, which are the two explicit aims of the Food Standards Programme, must be considered as being on the same level. In other words, if codes of hygienic practice are considered as being within the terms of reference of the Commission, the same assumption must apply to any code of practice designed to promote fair practices in the food trade. Thus, in the opinion of the Legal Counsels, the Commission has the authority to elaborate and adopt any code of practice which is designed to protect the health of the consumer and/or ensure fair practices in the food trade or which involves considerations relating to these two objectives. In this connection, it will be recognized that codes of technological practice, for example, could rarely, if ever, be said not to involve health considerations.
