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CONSTITUTIONAL AND LEGAL MATTERS

Report of the Fifty-second Session of the Committee on Constitutional and Legal Matters (Rome, 2-4 May 1989) 1

235. The Report of the Fifty-second Session of the Committee on Constitutional and Legal Matters (CCLM) was introduced by the Chairman of the Committee, Ambassador Fotis G. Poulides, who underlined the principal issues which had been considered by the Committee and the conclusions which it had reached.

- Procedure for Election of Chairmen and Members of the Programme and Finance Committees

236. The Council noted that the CCLM had explored three possible orientations which could be adopted with a view to ensuring conformity with the Conference Resolution 1187 on the Procedure for the Election of the Chairmen and Members of the Programme and Finance Committees, in particular with the 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; and

(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 members of the two Committees in accordance with Rules XXVI.3 and XXVII. 3 respectively.

237. The Council noted, further, that 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 reaching regional understandings.

238. The Legal Counsel conveyed to Council the views of the Director-General on the three orientations which had been explored by the CCLM. The Director-General had noted that the Committee had decided to pursue in more detail its second possible orientation, entailing the establishment of a pre-election and nomination procedure. The Legal Counsel indicated that the Director-General was concerned about the possible effects of such an approach. In the first place, 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.

239. The great majority of members did not favour the introduction of measures or amendments which would formalize the procedures for reaching regional understandings. They considered that the present provisions, combined with Conference Resolution 1187, were both satisfactory and sufficient. They underlined that the problems which had arisen in 1985 and in 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.

240. Many members suggested that a study should be undertaken with a view to establishing more appropriate regional groupings based on those used generally in the UN System. A number of countries opposed this suggestion on the grounds that the present regional groupings within FAO were more appropriate in the context of the specific objectives and functions of the Organization.

241. A few countries expressed their preference for investigating further the possible amendment of the General Rules of the Organization to introduce formal procedures for reaching regional understandings.

242. Some countries underlined the importance of ensuring equitable rotation of seats within regions.

243. In conclusion, the Council agreed that it would be preferable to maintain the flexibility inherent in the present system and not to introduce any modification thereto. In so doing, 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 1187.

- Draft Agreement on the Establishment of the Indian Ocean Tuna Commission

244. The Council expressed its interest in the proposed Indian Ocean Tuna Commission. It underlined that there was a need for a Commission which would include participation by coastal states and all other states fishing in the Indian Ocean and which would have management functions in order to ensure proper management of stocks.

245. Some members expressed their preference that the Commission be established, if possible, under Article XIV of the FAO Constitution.

246. The observer from the European Economic Community expressed the keen interest of the EEC in the establishment of the Commission and reiterated that it would wish to become a full member thereof.

- Draft Agreement between the Food and Agriculture Organization of the United Nations and the United Nations Industrial Development Organization

247. The Council recalled that it had already expressed itself in favour of the conclusion of a formal relationship agreement between FAO and UNIDO and that the Conference had expressed itself in the same sense. Working relations existed between FAO and UNIDO since 1969, following the conclusion of an agreement setting out Guidelines for Cooperation between FAO and UNIDO in the Field of Industrial Development.

248. In response to queries raised by one member, the Legal Counsel explained that the proposal to conclude a relationship agreement with UNIDO had been occasioned by the fact that UNIDO had become a UN Specialized Agency in 1985. The intention to conclude a formal relationship agreement had been reported to the Council and the Conference in 1987 and the Conference had noted the proposal with satisfaction. The agreement was a formal relationship agreement which dealt only in general terms with the division of responsibilities between FAO and UNIDO. Detailed provisions on this matter were set out in an agreement between the Director-General of FAO and the Executive Director of UNIDO, concluded in 1969, the provisions of which were continued in force under the new agreement.

249. Several members underlined the interest of concluding an agreement between FAO and UNIDO with a view to ensuring proper coordination in fields of activity which they share.

250. The Council decided to enter into the Agreement with UNIDO and to submit the Agreement, which is given in Appendix J to this report, to the Conference for confirmation.

- Proposed Signature of the Declaration of Environmental Policies and Procedures related to Economic Development

251. The Council recalled that the Declaration of Environmental Policies and Procedures relating to Economic Development had been signed on 1 February 1980 by 11 international development institutions. The signatories subsequently set up an inter-secretariat body, the Committee of International Development Institutions on the Environment (CIDIE), with a view to cpnstituting an appropriate forum for periodic review and appraisal of problems encountered and progress achieved in the implementation of the Declaration.

252. The Council noted that the CCLM had concluded that FAO's participation in CIDIE and signature of the Declaration would be consistent with the Basic Texts of the Organization, in particular the Preamble and Article I of the FAO Constitution and Rule XXXVII.2(k) of the General Rules of the Organization as well as the mandate of FAO in the field of environment.

253. Several members underlined the importance of the Declaration and expressed the opinion that it would be extremely appropriate that FAO participate in CIDIE and sign the Declaration.

254. The Council expressed its satisfaction in respect of the participation of FAO in CIDIE and the signature of the Declaration and agreed thereto.

- Immunity of the Organization from Legal Process in Italy

255. The Council recalled that two law suits against the Organization were now pending before the Italian Courts. The first case, brought by a former staff member, alleged that the immunity of the Organization did not extend to the staff member's employment relationship with the Organization. A second legal action had also been brought against FAO by the former official removers of the Organization.

256. The Legal Counsel provided supplementary information on one of the cases referred to by the Chairman of the CCLM. The case had been brought against the Organization by a former Italian General Service staff member, who was seeking a ruling that the Italian courts should apply Italian labour legislation to her employment relationship with FAO. The Legal Counsel stressed the importance of this case and of the consequences for the Organization should a final judgement be given against the Organization. If the Italian courts were to take jurisdiction in the case and apply Italian labour legislation, this would undermine the basic concept of the independence and integrity of the International Civil Service by subjecting it to the overriding requirements of a single national government. It was a fundamental concept that the employment relationship between international organizations and their staff should be subject only to the internal law of the Organization. Were the Italian courts to take jurisdiction on the case, it would also undermine the whole system of international adjudication of disputes through the internal appeals procedures and the International Labour Organanization (ILO) Administrative Tribunal.

257. The Legal Counsel recalled that the matter had been referred to both the CCLM and the Joint Session of the Programme and Finance Committees in view of the importance of the possible consequences of the action. In accordance with the express wish of those bodies, the Director-General had met recently with the Secretary-General of the Italian Ministry for Foreign Affairs. The latter had agreed that the provisions of the Headquarters Agreement dealing with the immunity of the Organization should be reviewed with a view to their amendment or the conclusion of an agreement on their interpretation. The amended Headquarters Agreement or agreed interpretation would be presented to Parliament for enactment as a law of the Italian Republic. The Legal Counsel informed the Council that in the meantime the Director-General, in accordance with the mandate given to him by the Conference in 1987, had called upon the services of the Italian Avvocatura Generale dello Stato to defend the Organization's immunity in court.

258. The Council underlined the necessity that the immunity of the Organization from legal process in Italy be fully respected. It was considered that the Headquarters Agreement was very clear on the question and that the Italian authorities should take every step necessary to ensure that these provisions were carried out.

259. The Council expressed its support for the steps which the Director-General was taking with a view to ensuring full respect of the immunity of the Organization from legal process in Italy and expressed its confidence that the Host State would take all necessary measures to this effect.

Invitations to Non-Member Nations to Attend FAO Sessions 2

260. In accordance with paragraph B-l of the "Statement of Principles relating to the Granting of Observer Status to Nations", 3 the Council took note of the request made by the Union of Soviet Socialist Republics (USSR) to attend as an observer the Ninety-fifth Session of the Council and agreed to its participation. The Council welcomed again this participation.

261. In accordance with paragraph B-2 of the aforementioned Statement of Principles, the Council was informed that since the Ninety-fourth Session, the Director-General on being so requested, had invited the USSR to attend as observers the following sessions:

- Nineteenth FAO Regional Conference for Asia and the Pacific, Bangkok, Thailand, 11-15 July 1988 (CC-708)

- Government Consultation on the Principle of Prior Informed Consent (PIC) in the International Code of Conduct on the Distribution and Use of Pesticides, Rome, 10-13 January 1989 (AGP-804)

- Nineteenth Session of the General Fisheries Council for the Mediterranean, Livorno, Italy, 27 February - 3 March 1989 (FI-716)

Conference for the Adoption of a Draft Agreement for the Establishment of the Indian Ocean Tuna Commission, Rome, 3-7 April 1989 (FI-823)

- Fifty-seventh Session of the Committee on Commodity Problems, Rome, 12 - 16 June 1989 (ESC-701)

262. The Council was also informed that the Director-General had invited the German Democratic Republic and the USSR to attend as observers the following sessions:

- Eighteenth Session of the Committee on Fisheries, Rome, 10 - 14 April 1989 (Fl-701)

- Twenty-eighth Session of the European Commission for the Control of Foot-and-Mouth Disease, Rome, 9 - 12 May 1989 (AGA-701)

263. The Council noted with satisfaction the interest shown in FAO activities by the USSR and the German Democratic Republic (GDR). It expressed the wish that the USSR, a founding nation of FAO, would soon exercise its right of membership in the Organization and that the GDR would take the necessary steps to become a member of the Organization.

Changes in Representation of Member Nations on the Programme and Finance Committees 4

264. As provided for in Rule XXVI-4(a) of the General Rules of the Organization (GRO), the Council was advised that Filibus Bature had replaced Jaafaru Ladan as the Government Representative of Nigeria on the Programme Committee.

265. As provided for in Rule XXVII-4(a) GRO, the Council was also advised that David Lawrence Coutts had replaced Alan Charles Smart and that Gerald J. Monroe had replaced His Excellency Fred J. Eckert as the new Representative of Australia and the United States of America respectively on the Finance Committee.

266. The Council took, note of the substitutes and thanked the outgoing representatives for their valuable services.

Communication from the Government of Spain Regarding the Status of the EEC with Respect to FAO 5

267. The Council noted that this item had been placed on the agenda of the Council at the request of the Government of Spain under Rule XXV.7(b) of the General Rules of the Organization (GRO). The request had been contained in a communication from the Government of Spain, in its capacity as the Member State currently holding the Presidency of the Council of the European Communities received by the Director-General on 17 May 1989. The communication was sent on behalf of the Member States of the Community which are also Member Nations of FAO and concerned the status of the European Economic Community (EEC) with respect to FAO. The text of this communication is attached in Appendix X to this report.

268. The Council noted that the Government of Spain, in its communication, had referred to the present observer status of the EEC, which dated back to 1962. The communication stated that since then the position of the EEC had evolved and that at present neither the Member States nor the Community could participate fully in the work of FAO in the field of activity where Member States had transferred authority to the Community. Consequently, the Council of the European Communities was considering the possibility of the Community obtaining a status of Member of FAQ commensurate with its powers.

269. The Legal Counsel recalled that the Government of Spain had requested that the matter be placed on the agenda of the present session of the Council so that the possibility of according the status of member for the Communities could be explored with the Commission. The present observer status of the EEC had been established by an exchange of letters between the President of the Communities and the Director-General of FAO in 1962. As regards membership in the Organization, it was clear under the FAO constitution, that membership in the Organization was reserved to States only. The EEC was thus not eligible to apply for membership in the Organization nor could the Director-General accept such application unless and until the Constitution and other Basic Texts had been amended appropriately. However, in the Legal Counsel's opinion, such amendments, while complex, would not present insurmountable problems of a legal nature.

270. The alternative set forth in document CL 95/19 which envisaged two possible lines of action was discussed:

(a) to refer this request to the next session of the Conference;

(b) to invite the Director-General to explore with the EEC the full financial, legal and other implications for the Organization, of membership in the Organization of a regional organization such as the EEC, with a view to presenting suitable proposals through the Council to the Twenty-sixth Session of the FAO Conference in 1991.

271. The Council, when it began its discussion, considered this topic to be extremely complex. The ensuing discussion expressed a wide range of opinion. Among the members who intervened in the discussion most favoured pursuing the matter according to some version or another of the proposed alternative.

272. Some members of the Council stated that since the document had been circulated a short time before the current session their Governments did not have enough time to react to it and thus they could not pronounce themselves on the matter at this stage. Some of these members, whilst recognizing that some problems did arise with respect to the legal status of the EEC vis--vis FAO, underlined that the matter was extremely complicated and that the implications were very far reaching. Consequently, they stated that it would be premature for the Council to adopt either alternative at this Session and that time should be given for governmental consultation and reflection. Some other members noted that they could envisage a form of associated membership, with appropriate amendments of the Basic Texts.

273. One Member stated that he would oppose any potential request by any international organization to become a member of FAO on the grounds that only states could be members of organizations in the UN System.

274. After a detailed discussion, an alternative along the lines of (b), modified to reflect views expressed, was favoured by a majority of the members who addressed the subject, though some expressed preference for alternative (a).

275. Discussion focussed on defining the scope and contents of alternative (b). Consideration was given to whether implications should be explored in relation to the EEC only or to a wider range of international organizations. Attention was also directed to the question of which implications should be considered by what means, and within what time-frame.

276. Taking account of the range of opinions expressed, the Council invited the Director-General:

(a) to explore the options for a form of membership of FAO of regional economic integration organizations to which their Member States had transferred competence in some fields of activity of FAO, along with the full constitutional, legal, financial, and other implications for the Organization of such options, keeping the Finance Committee and the CCLM fully informed of the progress thereof; and

(b) to report thereon to the Ninety-eight Session of the Council in November 1990.


1CL 95/5; CL 95/5-Sup.l; CL 95/PV/17; CL 95/PV/18.

2CL 95/INF/8-Rev 1; CL 95/PV/l; CL 95/PV/16; CL 95/PV/18.

4 CL 95/INF/9; CL 95/PV/16; CL.95/PV/18.

5 CL 95/19; CL 95/LIM/2; CL 95/PV/16; CL 95/PV/17; CL 95/PV/18.

3See FAO Basic Texts, Volume II, Section L (Appendix).

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