270. The Council noted that the CCLM's Forty-sixth Session had been devoted to consideration of various aspects of the question of the Organization's immunity from legal process in Italy.
271. The Council recalled that at its Eighty-sixth Session, it had strongly urged the Host Government "to accelerate the adoption of legislative measures that would guarantee, in the future, the Organization's immunity from legal process including measures of execution". 2 It noted with satisfaction that considerable progress had been made in settling outstanding disputes since its last session and that a draft legislation regarding the immunity from measures of execution of foreign States and international organizations had been submitted to the Italian Parliament. The Council expressed its appreciation for the invaluable efforts of the Permanent Representative of Italy, Ambassador Francisci di Baschi in this connection.
272. While welcoming these developments, the Council considered that they did not resolve the fundamental problem of ensuring that the Organization enjoyed full immunity from legal process as provided for in Section 16 of the Headquarters Agreement and that this situation was still a matter for deep concern. Therefore, the. Council once again invited the Host Government to take whatever measures were required to ensure that FAO would in fact be immune from "every form of legal process", as provided in Section 16.
273. The Council recalled the request which it had made to the Director-General at its Eighty-sixth Session (November 1984) "to make such preparations as might be necessary to enable the Conference, if it so decided, to seek an advisory opinion from the International Court of Justice on the interpretation of sections 16 and 17 of the Headquarters Agreement unless legislative action had been taken to safeguard FAO's immunity from legal process that would render an advisory opinion unnecessary". 3 It noted that the Director-General had referred the matter to the CCLM for consideration and that the CCLM had recognized that its principal task was to advise the Council on the formulation of the questions which the Conference might wish to address to the Court. It had also, however, found it appropriate to express some views on the desirability of an advisory opinion being sought.
274. The Council noted that, in this connection, the CCLM had expressed the opinion that it was premature at this stage to turn to the International Court of Justice and that all possible avenues should be explored with a view to finding a satisfactory solution, including the implementation of the arbitration clause of the Headquarters Agreement. The Council agreed that every effort should be pursued to develop the dialogue with the Host Government in depth before having recourse to an advisory opinion from the International Court of Justice but felt that the Organization must be prepared to go to the Court if necessary. The representative of Italy informed the Council that, for reasons already expressed in the CCLM 4, his Government could not agree to an advisory opinion being sought from the Court.
275. With respect to the questions which might be submitted to the Court for an advisory opinion, the Council agreed with the conclusions of the CCLM that the questions could be formulated as follows:
276. Similarly, the Council endorsed the conclusions of the CCLM to the effect that it was not necessary to raise the question of the interpretation of Section 17 with the Court since, in particular, measures of execution being a form of legal process, they were already covered by Section 16. Moreover, the Italian courts had never had before them a question concerning FAO's immunity from measures of execution under this Section and the interpretation that the Italian Government had repeatedly given was that Section 17 afforded FAO full immunity from measures of execution.
277. In conclusion, therefore, whilst recognizing that for the time being it might be premature to actually seize the Court of the questions, the Council decided to transmit to the Conference the two questions relating to the interpretation of Section 16 as set out in paragraph 275 above, considering them to be appropriate if the Conference should decide that it was necessary to seek an advisory opinion from the International Court of Justice or authorize the Council to do so on its behalf at a later stage.
278. The Council wanted to consider the CCLM's recommendations concerning the desirability of accepting the Host Government's services to plead the Organization's immunity in the Italian courts. The Council recalled that at its Eighty-sixth Session (November 1984) it had invited the Director-General to submit this question to the CCLM for further examination. 5
279. The Council noted that the Italian Government's offer to provide the services of the Avvocatura Generale dello Stato, free of charge, to plead the Organization's immunity did not imply that the Government would substitute itself for FAO as a party to the litigation, but simply that the Avvocatura would act on behalf of FAO in accordance with the instructions received from the Organization. It also noted that the question of using the services of the Avvocatura Generale dello Stato would only arise if the Organization were to put in an appearance in court to plead its immunity.
280. In discussing the Italian Government's offer, a number of members considered that the possibility of the Organization's pleading its immunity in court should not be totally excluded and that discretion might be given to the Director-General to do so if he deemed fit. In such circumstances the Director-General would have discretion whether or not to avail himself of the Avvocatura Generale dello Stato. However, the majority of the Council concluded that it would not be desirable to envisage an appearance by FAO before the Italian courts, even if represented by the Avvocatura Generale dello Stato for the sole purpose of pleading its immunity. Consequently, the Council decided not to modify the position that it had taken at its Eighty-second Session (November/December 1982) 6 to the effect that the Director-General "... should avoid any participation in the proceedings before the Italian courts that was inconsistent with ..." the status whereby it enjoyed immunity from jurisdiction.
281. The Council took cognizance of the application for membership submitted by the Cook Islands.
282. Pending a decision by the Conference on this application, and pursuant to Rule XXV.11 of the General Rules of the Organization and paragraphs B-l, 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 Cook Islands to participate, in an observer capacity, at appropriate Council meetings as well as regional and technical meetings of the Organization of interest to it.
283. The Council was advised that the Director-General had invited the USSR, a Non-Member State, to attend the Eighth Session of the Committee on Agriculture (Rome, March 1985), the Sixteenth Session of the Committee on Fisheries (Rome, April 1985), and the Twenty-sixth Session of the European Commission for the Control of Foot-and-Mouth Disease (Rome, April 1985). The invitations have been issued in accordance with paragraphs B-l and B-2 of the "Statement of Principles relating to the Granting of Observer Status to Nations". 9
284. The Council approved the Director-General's proposal to invite Brunei, Kiribati, Nauru, Singapore and Tuvalu to the Conference of Plenipotentiaries to adopt an INFOFISH (Market Information Service for Fishery Products in the Asian and Pacific Region) Agreement, which would take place in Malaysia from 9 to 13 December 1985.
285. As provided for in Rule XXVI-4(a) of the General Rules of the Organization, the Council was advised that Felix Sabal Lecco had replaced Amos George Ngongi Namanga as the representative of Cameroon for the Forty-eighth Session of the Programme Committee and that Guillermo E. González had replaced Oscar Keller Sarmiento as the representative of Argentina for the second period of the Forty-eighth Session of the Programme Committee.
286. As provided for in Rule XXVII-4(a) of the General Rules of the Organization, the Council was advised that George H. Musgrove had replaced Pierre Gosselin as the new representative of Canada, and that Giesbert von Westphalen had replaced Siegfried Schümm as the new representative of the Federal Republic of Germany on the Finance Committee.
287. The Council was further advised that Bernardino Sequeira, the representative of Angola on the Finance Committee, had been replaced by Josefa Guilhermina Coelho da Cruz for the Fifty-fifth Session of the Committee and would be substituted by Pedro Agostinho Kanga for the Fifty-sixth Session.
288. The Council thanked the outgoing members for their service to the Committees and took note of the qualifications and experience of the substitutes.
1 CL 87/4, paras. 3.100-3.109; CL 87/5, paras. 4-37; CL 87/5-Sup.l; CL 87/PV/17; CL 87/PV/19.
2 CL 86/REP, para. 206.
3 CL 86/REP, para. 196.
4 CL 86/5, para. 19.
5 Council Resolution 4/86.
6 CL 82/REP, para. 212.
7 CL 87/PV/l; CL 87/PV/18.
8 CL 87/INF/8; CL 87/PV/17; CL 87/PV/19.
9 See Basic Texts, Volume II, Section L.
10 CL 87/INF/9; CL 87/INF/9-Sup.1; CL 87/PV/17; CL 87/PV/19.