I have been asked to give an opinion on two questions:
I will answer the first question.
In my opinion membership by a Member Organization in FAO would entitle that Member Organization to participate in bodies operated jointly with other organizations such as the Codex Alimentarius, a joint FAO/WHO body, and the World Food Programme Committee on Food Aid Policies and Programmes (CFA), a joint subsidiary body of the UN and FAO. The basic documents establishing both of these joint bodies allow for membership by Member Nations, or Member States of one of the parent organizations. The effect of the proposed assimilation clause in the amendments to the FAO Constitution, however, would be to allow regional economic integration organizations that are members of FAO, as one of the parent organizations, also to be eligible for membership in such bodies. This would be consistent, in the case of the Codex Alimentarius, with its status as a joint Commission established under Article VI of the FAO Constitution. Following the general principle set down in the proposed amendments to Constitution, Member Organizations would not be eligible for election in their own right to such joint bodies, but would merely exercise the rights, of membership of their Member States that are elected, in accordance with the principle of the alternative exercise of membership rights. The issue of eligibility for election to the Codex Alimentarius does not of course arise, since membership in the Codex is open to all Member Nations (and hence Member Organizations) that are interested in international food standards and that have notified the Director-General of FAO or WHO of their desire to be considered as Members. However, Ï would point out that the exercise of rights of membership may involve changes in the Rules of Procedure and working methods of such joint bodies. Thus my opinion would be without prejudice to whatever procedural decisions may be required by the relevant intergovernmental bodies.
Turning to the second question, I should perhaps give a word of explanation about the so-called Vienna Clause. This is the clause found at the end of most international agreements that specifies the states that are entitled to become parties to the agreement. The normal wording refers to states member of the United Nations, any of the specialized agencies or the IAEA. The question is how would the assimilation clause in the proposed amendments to the FAO Constitution, that is the provision that reads "Except as otherwise expressly provided, any reference to Member Nations in this Constitution shall include any Member Organization", how does this clause affect the Vienna clause. More particularly, the question is, as I understand it, if the Constitution of FAO indicates that references to Member Nations include Member Organizations, would this mean that the reference to any state that is a member of any specialized agency in the Vienna Clause would automatically include any Member Organization of FAO.
The answer to this question is no. The assimilation clause is merely a drafting technique in order to avoid having to spell out in the Constitution the words "and Member Organizations" in every Article of the Constitution. It does not mean that a Member Organization would be equated for all purposes with a Member Nation. Its scope of application is also specifically limited to the FAO Constitution itself. It would thus apply only within the framework of the Constitution and to any subsidiary or joint subsidiary body established within that framework. It would apply, as I have already mentioned, to the Codex Alimentarius and the CFA, which are joint subsidiary bodies of FAO. The effect of the assimilation clause, however, would not extend beyond the confines of the Constitution, and would thus have no effect on the Vienna Clause, which would remain limited to States.
I wish to add that I have consulted the UN Legal Counsel on this matter, and the above opinion is shared by him.
