Mr. Roche is Legal Consel, Legal Office, FAO
This article is devoted to "INFOFISH" - the Intergovernmental Organization for Marketing Information and Technical Advisory Services for Fishery Products in the Asian and Pacific Region. This new regional intergovernmental organization was established under a convention which was adopted at a conference convened by FAO in Kuala Lumpur in 1985 and which entered into force in March 1987. The author describes the steps whereby FAO-executed projects culminated in the creation of an autonomous intergovernmental organization. In analysing the objectives and functions of INFOFISH the author points out that while these appear traditional at first sight, they are to be undertaken in a way that is to a certain extent innovative. Thus, it is intended that INFOFISH's services relating to trade promotion and the dissemination of market information are to be provided to member states, industry and individuals mainly against payment. INFOFISH is therefore a primarily self-financing "service organization" and, as an intergovernmental organization, performs many functions that are similar to those of a marketing consultant.
The author goes on to examine the organizational structure, voting procedures and financing of INFOFISH. As regards the provisions governing membership he concludes that INFOFISH is primarly an instrument for regional technical and economic cooperation among developing countries, although the role of developed countries in the region is recognized and the possibility of countries outside the region becoming members is not precluded.
With respect to the legal status of INFOFISH, the author considers that the nature of its functions do not detract from its international legal personality and that they only raise general questions of international law as regards the organizations' immunity from legal process. In this connection the author raises the question whether there will be a trend toward intergovernmental "service organizations" performing their functions in a manner analogous to a commercial transaction, and whether this trend would reinforce a tendency that already exists in a few countries to distinguish between acts performed jure imperii and jure gestionis in the context of an organization's immunity from legal process.
Twenty years ago Jean Carroz and the author wrote an article on an intergovernmental fisheries organization whose constitutive instrument had just been adopted by a conference of plenipotentiaries convened by FAO.1 In making a tribute to the memory of Jean Carroz and, in particular, to his dedication to creating a legal and institutional framework for intergovernmental cooperation in the fisheries sector, it therefore seems appropriate to dedicate some pages to a new fisheries organization that has recently been established following the adoption of an agreement by another conference of plenipotentiaries convened by FAO.2 This new organization has the unwieldy name of "Intergovernmental Organization for Marketing Information and Technical Advisory Services for Fishery Products in the Asia and Pacific Region" but is known as "INFOFISH".3 This nomenclature is also used in the Agreement establishing INFOFISH which entered into force on 3 March 1987. The First Session of the Governing Council of INFOFISH was held from 20 to 23 April 1987. At the end of July 1987, its members were Bangladesh, India, Democratic People's Republic of Korea, Malaysia, Maldives, Solomon Islands and Sri Lanka.4
1 Carroz, J.E. & Roche, A.G. 1967. The Proposed International Commission for the Conservation of Atlantic Tunas. American Journal of International Law, 61(3):673-702.
2 Conference of Plenipotentiaries on the Adoption of an Agreement on the Establishment of INFOFISH, Kuala Lumpur, Malaysia, 9-13 December 1985.
3 The full title of the Agreement, of which the Director-General of FAO is the depositary, is: "Agreement for the Establishment of the Intergovernmental Organization for Marketing Information and Technical Advisory Services for Fishery Products in the Asia and Pacific Region (INFOFISH)". The Agreement was adopted in English and French. The titles of the Agreement and the Organization, respectively, in the French language, are as follows: "Accord portant création de l'Organisation intergouvernementale de renseignements et de conseils techniques pour la commercialisation des produits de la pêche en Asie et dans le Pacifique (INFOFISH)" and "Organisation intergouvernementale de renseignements et de conseils techniques pour la commercialisation des produits de la pêche en Asie et dans le Pacifique". The French text also uses the abbreviation "INFOFISH".
4 In addition, the Agreement has been signed, subject to ratification, by France and Indonesia.
The creation of a new intergovernmental organization, in itself, scarcely warrants an article. The proliferation of such organizations since the end of the Second World War has made them an accepted part of the international community and they far outnumber the traditional subjects of international law which are sovereign states. Nevertheless, the negotiation of treaties establishing intergovernmental organizations, as well as the texts of the treaties as adopted and activities provided for thereunder, may well raise legal questions which merit the attention of those interested in the application and development of international law. This would appear to be the case as regards INFOFISH and the following pages will deal first with the origins of INFOFISH - that is to say the process which led up to the adoption of a multilateral treaty - and then with certain particular features of the treaty itself.
THE ARRANGEMENTS THAT PRECEDED THE ADOPTION OF THE AGREEMENT ESTABLISHING INFOFISH
The arrangements that preceded the adoption of the Agreement establishing INFOFISH The establishment of an intergovernmental organization presupposes the concerted will of two or more states,5 which is usually expressed at a conference which adopts a treaty. When the treaty enters into force and the intergovernmental organization comes formally into being, the practical utility of its activities to its member states is actually put to the test. Except in the case where one organization takes over all or part of the activities of a pre-existing organization, performance of the activities entrusted to the new organization are begun from scratch.
5 The parties to the constituent instrument of an intergovernmental organization and the participants in the negotiations which precede the adoption of that instrument may also be intergovernmental organizations. In fact, the European Economic Community (EEC) is a member of several intergovernmental organizations and it is theoretically (so far) conceivable that all the members of an intergovernmental organization should, themselves, be intergovernmental organizations.
In the case of INFOFISH, however, the process leading up to its becoming an intergovernmental organization was, in certain respects, unusual and the activities that it now undertakes pursuant to a multilateral treaty had already been tried out, successfully, under legal arrangements of a different character.
The marketing of fishery products in the Asia and Pacific region is of great economic importance to many countries in the region. Successful marketing by producers, processors, importers and exporters in both the public and private sectors is largely dependent on accurate and up-to-date information, whether it be about supply and demand, prices, tariffs, quality standards required by importing countries, new production techniques, available transportation and refrigeration services, or innumerable other related topics. These considerations underlie the initiation of a project, carried out by FAO, which began its operations in 1981 financed by extra-budgetary funds contributed by the Norwegian Government.6 The project became operational following the signature of the project document by Malaysia, the Philippines, Sri Lanka and FAO. However, without their becoming a party to the project document, the following fifteen states and territories participated through the establishment of national liaison offices which collaborated with the project's secretariat: Bangladesh, Brunei, Cook Islands, Fiji, Hong Kong, India, Indonesia, Republic of Korea, Maldives, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Thailand and Tonga. A second phase of the project began in March 1984, with about three-quarters of the funding being derived from the sale of services and contributions from participating governments.7
6 The background and purpose of the project are set out in some detail in Appendix III to the Project Document. FAO is executing similar projects in other regions. These projects will be considered briefly under the heading "Relations between INFOFISH and other organizations" below.
7 FAO (as executing agency), Norway (as a donor government) and the following other governments were parties to the project document covering the second phase: Bangladesh, India, Indonesia, Malaysia, Maldives, Solomon Islands, Sri Lanka and Thailand.
Thus the activities for which INFOFISH is now responsible as an autonomous intergovernmental organization were, to a great extent, commenced under project documents to which interested governments and FAO were parties. These project documents, which may be assimilated to treaties in simplified form and which certainly create legal obligations for the parties, did not establish an organization. They merely envisaged a regional fish marketing information and advisory network through which each participating government would cooperate in achieving the purposes of the project, as well as an advisory and coordinating committee to review the progress made.
What is perhaps one of the more interesting features of the project documents is that, from the very outset, consideration was to be given to how the activities envisaged in those documents might be continued after the financial support of the donors had come to an end. One of the purposes of the project set out in the first project document was precisely to "establish the legal/organizational framework for continuing these services on a permanent self-financing basis after termination of present donor support". The description of the work to be carried out, annexed to the project document, assigns to the project's Advisory and Coordinating Committee the task of preparing, in consultation with national governments, "a plan for the continuation of the service after termination of the donor support". The Committee's proposals were to include "suggestions for a legal/organizational framework for the long-term operation of the services by the Asian/Pacific countries".
The process designed to determine the kind of legal entity that could best pursue the project activities had already begun in May 1982. In a secretariat paper8 submitted to a technical consultation of INFOFISH national liaison offices, four possible options were discussed. These options were that INFOFISH be: (a) established as an intergovernmental organization; (b) established as a non-profit-making legal person incorporated under a national legal system; (c) taken over by an institution already in existence in the region; or (d) established as, or taken over by, a profit-making entity incorporated under a national legal system.9 The widely-differing legal implications of these possible courses of action may seem surprising. But they are explained by the fact that INFOFISH, as then conceived and also as now constituted as an intergovernmental organization, was always intended to be a supplier of particular services and to derive a substantial proportion of its funding from the sale of these services. Consequently, intergovernmental management, or a less formal structure on the lines of a public or private corporation, were equally conceivable. In any event, the Technical Consultation opted for an intergovernmental organization and this choice was endorsed by the project's Advisory and Coordinating Committee in September 1982. At that stage the future legal personality of INFOFISH was virtually decided. The die had been cast and, from then on, efforts were directed exclusively toward the drafting of an agreement pursuant to which an intergovernmental organization would be created. At a meeting held in September 1983, the Advisory and Coordinating Committee agreed that a consultation of legal experts should be convened to review a draft agreement. An annotated draft agreement was submitted to the Consultation of Legal Experts, held in Kuala Lumpur, Malaysia, on 13 and 14 September 1984 and attended by experts from India, Indonesia, Solomon Islands and Thailand. Experts from Malaysia and Sri Lanka attended as observers. The Consultation drew up a revised draft agreement, although it did not make many substantive changes to the text that had been presented to it, and recommended that the Director-General of FAO convene a conference of plenipotentiaries in 1985 to adopt an agreement. The revised text of the draft agreement was circulated to thirty-seven governments for comment. Subsequently, those governments were invited to attend a Conference of Plenipotentiaries which was held in Kuala Lumpur from 9 to 13 December 1985.
8 Document TC/82/11.
9 Another possible course of action could have been the conclusion of a treaty by which interested states agreed to set up, under the law of a given country, a corporation with specific functions.
The two principal substantive documents that were considered by the Conference of Plenipotentiaries were the revised draft agreement establishing INFOFISH, and an annotated version of the latter document reflecting the comments received from governments with, in addition, some comments and suggestions made by the FAO Secretariat.10 The Conference was attended by representatives of fourteen states11 and it adopted the Agreement which is now the constituent instrument of INFOFISH.
10 Documents INFOFISH 4 and INFOFISH 5, respectively.
11 Australia, Bangladesh, Democratic People's Republic of Korea, France, India, Indonesia, Korea (Republic of), Malaysia, Maldives, New Zealand, Solomon Islands, Sri Lanka, Thailand and Tonga. In addition, Norway was represented by an observer.
The adoption of an agreement will enable governments in the Asia and Pacific region to continue to benefit from project activities. Although the legal arrangements that commended themselves to governments took shape early on in that process, the nature of the activities in question were such that several very different legal solutions could well have been chosen.
THE OBJECTIVES AND FUNCTIONS OF INFOFISH
The provisions of the INFOFISH Agreement which lay down the objectives and functions of the Organization are precise and succinct. Therefore, it would appear preferable to quote them in full before discussing certain legal questions that relate to them. Articles 3 and 4 of the Agreement read as follows:
"Article 3 - Objectives
The objectives of INFOFISH shall be:(a) to enable the fisheries of the Contracting Parties to develop in accordance with current and future market demand and to take full advantage of the potential offered by their fishery resources;
(b) to contribute to the upgrading and modernization of fisheries of the Contracting Parties;
(c) to contribute to more balanced supplies of fishery products to the Contracting Parties;
(d) to make the best use of export opportunities within and outside the Asia and Pacific region; and
(e) to promote technical and economic cooperation among Contracting Parties in this sector."
"Article 4 - Functions
For the achievement of its objectives, INFOFISH shall:(a) provide to its Members marketing information on fishery products, including sales opportunities and supply prospects within and outside the Asia and Pacific region;
(b) advise on technological developments, product specifications, processing methods and quality standards in accordance with market requirements;
(c) assist in developing new products and marketing opportunities for fishery resources that are not fully utilized for human consumption;
(d) assist in the planning and implementation of national fish market information and research activities in Member Countries; and
(e) train staff in governments, institutions and industry in marketing development and strengthen national institutions involved in this field."
The objectives contained in Article 3 reflect, in general terms, the objectives of the original project. The functions of INFOFISH, which remained to all intents and purposes unchanged in the various drafts of the Agreement, reflect, almost word for word, the purposes of INFOFISH listed in the original project document. Thus, although the legal structure of the entity that would perform these functions was not determined at the time when the project document was drawn up, the functions themselves continued to be valid for the intergovernmental organization that was finally created.
The functions of INFOFISH set forth in Article 4 call for some comments. At first sight the functions give the impression that INFOFISH is a traditional intergovernmental organization whereby its member governments would exchange information and cooperate directly among themselves through their ministries or other governmental authorities concerned with fisheries and trade. However, the activities carried out under the INFOFISH project which have been taken over by INFOFISH as an intergovernmental organization are of a somewhat different character. INFOFISH provides information and services not only to its member states, but also to the public; e.g. to individuals and corporations interested in processing and marketing "fishery products". The latter are defined in Article 2 as "all aquatic animals and plants and products derived therefrom".12
12 Article 2 goes on to exclude endangered species, covered by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, and cetacean species not covered by that Convention.
The first programme of work13 and budget of INFOFISH as an intergovernmental organization includes the activities that had been developed over the approximately five years of operation as a project. Trade promotion activities cover, inter alia responding to requests for assistance in finding export markets and new sources of supply for fishery products by "matching" the most suitable buyers and sellers using the INFOFISH data base, close contacts with industry in the region, maintaining a register of exporters and importers, holding seminars for industry in member states and identification of marketing opportunities through pilot production schemes. Marketing information, another important component of the programme of INFOFISH, includes the publication of two periodicals - the INFOFISH Trade News and the INFOFISH Marketing Digest. Technical advisory services to be provided by INFOFISH (which will be funded by the United Nations Development Programme until 1989) would cover such matters as technical advice on post-harvest aspects of fisheries and aquaculture, and also training programmes on handling, processing and quality control.
13 Document IFS: GC/I/6.
The activities of INFOFISH are not in themselves unusual. A number of organizations, for example those concerned with commodities, deal with the promotion of trade and the dissemination of marketing information. Two comparatively recent examples are the International Jute Organization14 and the International Tropical Timber Organization.15 However, the activities of INFOFISH must be considered in the context of Article 12 of the Agreement, entitled "Finances". In addition to mandatory contributions from member states and donations, one of the sources of the Organization's financing given in Article 12.1 is "the revenue obtained from the provision of services against payment, which include: subscriptions to INFOFISH publications, sales of information, paid advertisements in INFOFISH publications and consultant fees for its technical services". Furthermore, Article 12.3 provides that:
"INFOFISH shall be operated having regard to generally accepted commercial principles. To this end, INFOFISH shall charge for the services it grants at rates set by the Governing Council with a view to the revenue thus derived covering the operating costs and administrative expenses of INFOFISH, and replacement of operating assets".
14Established under the International Agreement on Jute and Jute Products, 1982 (UNCTAD, doc. TD/JUTE/11). See, in particular, Articles 1.1(d), 1.2(a), 23.1 and 25.
15 Established under the International Tropical Timber Agreement, 1983 (UNCTAD, doc. TD/TIMBER/11). See, in particular, Articles 1(b), (d) and (g), 23. 2 and 25.
It is, therefore, not surprising that in the proposed budget for the first full year of operation (1988), income from subscriptions to periodicals, advertisements and other reimbursable services was estimated at US$330 000, whereas contributions from member states would be US$150 000.16 Since INFOFISH has always been perceived as an organization that would be almost, if not entirely, self-financing, it is clear that mandatory contributions from member states will gradually decrease if its activities flourish. This ultimate goal is also reflected in the report of the FAO World Conference on Fisheries Management and Development, held in Rome from 27 June to 6 July 1984, in which it is stated in paragraph 35 that regional fish marketing information services should in the long term "be financially self-supporting and function as intergovernmental organizations or be affiliated to suitable existing regional organizations".
16 The proposed budget was approved with only minor changes at the First Session of the INFOFISH Governing Council. Document IFS:GC/REPORT 1, paras. 24-28.
From the above it can be seen that INFOFISH will provide a largely self-financed service for the benefit of its member states, but that this benefit will to a great extent be derived through the Organization's being directly accessible to - and in fact used by - the industry and trade sectors inside and outside those member states.
Attempts are often made to categorize intergovernmental organizations in terms of their membership (e.g. "worldwide" or regional), or the nature of their principal functions (e.g. political or technical). So far as any categorization is possible, or even desirable, now that intergovernmental cooperation through international institutions covers such a broad field of activity, INFOFISH is certainly a regional and a technical organization. However, its functions and sources of funding are such as to warrant its being placed in a subcategory of technical organizations which might be called "service organizations". Such organizations depend to a substantial degree on the sale of their services to the public. This type of organization is not unknown. For instance, the Convention on the International Maritime Satellite Organization (INMARSAT) provides, in Article 19(i), that the INMARSAT Council shall establish charges for the utilization of the INMARSAT space segment, and Article 5(3) of that Convention requires that INMARSAT operate "on a sound economic and financial basis having regard to accepted commercial principles". Provision for such charges by an intergovernmental organization is readily understandable when its creation is intended to pool the resources of different governments and to meet considerable capital outlay or maintenance costs. There are, in addition, many entities whose legal structure varies considerably, but which have in common the fact that they have been established by states for the purpose of joint participation in activities of an essentially commercial or industrial character.17
17 For a study on some such entities created by developing countries and a discussion of legal issues that arise in this connection see "Juridical Aspects of the Establishment of Multinational Marketing Enterprises among Developing Countries" UNCTAD, document TD/B/C.7/28/Rev. 1, United Nations, New York, 1982. This study also refers, for purposes of comparison or illustration, to entities established by developed countries.
The income-generating activities of INFOFISH are akin to the services that might be obtained from a private firm of marketing consultants. The only difference is that the consultant providing the services and receiving payment therefor is, in the case of INFOFISH, a subject of international rather than municipal law. The creation of self-financed "service organizations" is, in fact, an innovative development.
ORGANIZATIONAL STRUCTURE, VOTING PROCEDURES AND FINANCING
The organizational structure of INFOFISH follows what might be termed a traditional pattern. There is a Governing Council, consisting of all member states, which meets annually in regular session (Art. 7.1 and 2), a Technical and Advisory Board composed of one representative designated by each member state (Art. 8.1) which meets at least once a year, and a secretariat headed by a director appointed by the Governing Council (Art. 11.1). The Conference of Plenipotentiaries did, however, make a significant amendment to the structure that had been proposed to it. It decided that the Governing Council should meet annually instead of once every two years and that there should not be an executive board of selected member states which would make recommendations to the Governing Council and give guidance to the Director. Thus, the statutory bodies which will direct the policy of INFOFISH and provide the latter with technical advice are both made up of all member states. However, in accordance with Article 10.2, their representatives on the Technical and Advisory Board "shall be competent individuals or entities, public or private, known for their expertise or their close involvement in the technical, marketing and trade aspects of fishery products". The Technical and Advisory Board, inter alia, advises the Governing Council on "all technical and economic aspects of INFOFISH activities" (Art. 10.4). Since INFOFISH will be active in the marketing area, its effectiveness requires close contacts with industry and trade - not only in Asia and the Pacific but also outside the region.18 This was recognized by the Advisory and Coordinating Committee of the project and eventually reflected in the Agreement establishing INFOFISH. The possibility of providing for some form of associate membership by entities that were not states was mentioned in the annotations to the draft submitted to the Consultation of Legal Experts. However, it was pointed out that this might be confusing, since associate membership of intergovernmental organizations tended to be reserved for territories with a measure of self-government. It was, therefore, suggested that it would be preferable to secure the participation of the industry and trade sectors by enabling them to take part in meetings of the statutory bodies of INFOFISH in an observer capacity, as well as through their representation on advisory bodies whose membership would not be confined to states. This is, in fact, the course that was followed, and it is interesting to note that member states may designate as their representatives not only individuals, but public or private "entities", thus providing a direct link between member states and the secretariat on the one hand, and the industrial and trade sectors on the other.
18 In Article 4, the first function of INFOFISH relates to marketing information including sales opportunities and supply prospects "within and outside the Asia and Pacific region".
As is the case with the creation of most intergovernmental organizations, one of the key issues is how the decision-making power will be distributed among member states. For instance, should the principle of one state one vote apply or, instead, should the voting procedures give some form of recognition to the significance of the interests of individual member states in the trade in fishery products in the region?
The draft agreement submitted to the Consultation of Legal Experts contained the basic idea of decisions by the Governing Council - the supreme body of INFOFISH - being taken by a majority of the votes cast, but there were also three provisions in respect of which it was tentatively suggested that the special interests of certain states might be taken into account. These provisions related to the admission of member states that were not eligible to become original members,19 to the constitution of a quorum in the Governing Council and to amendment of the Agreement. In those cases, not only did a certain majority have to be attained but, in addition, the combined fish export value of the countries making up that majority would have to constitute "not less than fifty percent of the total fish export value of all members of INFOFISH". The Consultation of Legal Experts retained these provisions. The Conference of Plenipotentiaries maintained the concept for the admission of member states and the amendment of the Agreement (Art. 6.3 and 16.1), but not for making up a quorum in the Governing Council where it is now provided that "A majority of the members shall constitute a quorum" (Art. 7.6). However, the Conference of Plenipotentiaries introduced the concept as far as concerns determination of the regular budget by the Governing Council (Art. 12.2). Thus, whereas the scale of contributions is approved by unanimous vote, the Governing Council shall, "by a majority of three-quarters of all its members, the combined fish export value of which constitutes not less than fifty percent of the total fish export value of all members of INFOFISH, determine the regular budget for the following year".20
19 See Section V below.
20 As laid down in Article 6.3, the fish export value shall be based on the most recent fish trade statistics published in the FAO Commodity Yearbook.
Despite the considerable differences in the trade export value of potential original member states of INFOFISH, which include, for example, Japan and Tonga, the special influence given in the voting procedures to the states with a large fish export value is comparatively limited. Trade export value must be taken into account in only three instances where the majority required is, in any case, three-quarters of all the member states. Of course, the relevance of the fish export value of member states in the decision-making process will also depend on the membership of INFOFISH and, especially, on whether such membership includes states whose fish export value is much greater than that of most of the other members. The principle that decisions of the Governing Council would normally be taken by a majority of the votes cast was maintained (Art. 7.6).21 However, unanimity is required for determination of the scale of contributions (Art. 12.2) and qualified majorities are required for decisions of the Governing Council relating to: admission of member states (Art. 6.3), adoption of rules of procedure (Art. 7.5), approval of the regular budget (Art. 12.2), amendment of the Agreement (Art. 16.1), dissolution of INFOFISH (Art. 17.2) and suspension of membership (Art. 18.2).
21 Under Rule 17 of the Rules of Procedure adopted by the Governing Council of INFOFISH at its First Session (doc. IFS/GC/REPORT 1, Annex 2), this rule applies mutatis mutandis to the Technical and Advisory Board and any subsidiary bodies that may be established by the Governing Council.
The Conference of Plenipotentiaries also added a new provision (Art. 12.4), based on Article III.4 of the FAO Constitution, to the effect that member states whose arrears in contributions were equal to or in excess of the amount due for the two preceding calendar years would lose their vote in the Governing Council and cease to be represented on the Technical and Advisory Board. The Governing Council might, nevertheless, permit a member state to vote if its failure to pay was due to conditions beyond its control.
As regards the financing of INFOFISH, reference has already been made in Section III above to the sources of financing and to the fact that the Organization is intended to be "self-financing". Even a self-financing organization must always be assured of a stable source of revenue, normally derived from the mandatory contributions of member states. So the question arose as to the way in which these contributions were to be apportioned. In the draft agreement submitted to the Consultation of Legal Experts, provision was made for the adoption of the regular budget by a two-thirds majority of the votes cast and for the apportionment of the budget among members in the manner decided by the Governing Council by a three-quarters majority at its first regular session. In the annotations to this text, it was pointed out that there were many possible formulae for apportionment, including that of placing member states in groups according to the value of their fish export trade. The provisions originally considered by the Consultation of Legal Experts were submitted to the Conference of Plenipotentiaries. In the light of comments made by Australia and the Republic of Korea, the annotations made by the FAO Secretariat pointed out that there was an infinite variety of ways in which contributions to a budget could be calculated and they referred to the advantages and disadvantages of certain methods.22
22 Document INFOFISH 5, pp. 13-15.
At the Conference of Plenipotentiaries the financial questions were the most difficult to resolve. One of these questions was whether all member states should pay the same contribution or whether there should be a scale of contributions. The outcome reflected in Article 12.2 was a compromise. Member states would contribute a "minimum contribution", determined by the Governing Council, which would be the same for all of them, while the Governing Council would establish a scale of contributions, by a unanimous vote, that would take into account "GNP per capita, total fish exports value and fish exports as a percentage of total exports".
The above-mentioned compromise was put into effect at the First Session of the INFOFISH Governing Council. On the recommendation of a working group that it had set up, the Governing Council adopted a scale of contributions in which the then six member states and fifteen other potential original members, were placed in four groups.23 Group "A" - developed countries - would pay annually US$50 000; Group "B" - developing countries with significant fish trade - would pay US$25 000; Group "C" - developing countries with important fish trade - would pay US$15 000; and Group "D" - small island countries - would pay US$5 000.
23 See document IFS: GC/REPORT 1, paras. 29-32 and Annex 6. The scale of contributions as adopted was based on a secretariat paper doc. IFS:GC/I/7 in which the twenty-one countries were placed in the same groups, taking into account the criteria listed in Article 12.2 to which different weights were given to reflect "in an appropriate and reasonable manner the level of economic development and the relative importance of the fishery industry and fish trade of each member".
It appears that the Governing Council gave a somewhat liberal and pragmatic interpretation to Article 12.2. The fixed amount payable by all member states is, to all intents and purposes, the minimum paid by the countries in Group D. At the same time, the scale of contributions is, in effect, determined by placing countries in different groups since this was done by taking into account the criteria specified in Article 12.2 and by giving an appropriate weight to each of these criteria. It would appear to follow that the decision by which various countries were allocated to a particular group can only be changed by a unanimous vote. The actual amount to be paid by the countries in each group will, of course, depend on the amount of the budget. However, what remains to be seen is whether the ratio that the amount of the contribution of countries in one group bears to the contribution of countries in other groups will be the same in future years.
MEMBERSHIP OF INFOFISH
When preparing the first version of the draft agreement for the establishment of INFOFISH, one of the more difficult and sensitive questions was to draft a provision that would cover the future potential membership of INFOFISH. For instance, should there be a geographical criterion? Should membership be restricted to developing countries? Should active participation in the then current project be a criterion? Should countries outside the region be eligible for membership? The solution that was chosen consisted in making original membership open to states that were invited to be represented as full participants (i.e. not as observers) at the conference that would adopt the agreement. All other states would have to be admitted by the Governing Council. The decision regarding the choice of the countries to be invited to the conference would be left to consultations held by the project secretariat with the project's Advisory and Coordinating Committee and governments concerned.
The text, as originally drafted, was eventually submitted to the Conference of Plenipotentiaries. In the meantime, upon the recommendation of the Consultation of Legal Experts held in 1984, thirty-seven countries were invited as full participants. These countries included three developed countries (Australia, Japan and New Zealand) and three developed countries with territories in the region (France, the United Kingdom and the United States of America).24
24 The full list of 37 states is given in the Annex to the Agreement. The states are: Afghanistan, Australia, Bangladesh, Bhutan, Brunei, Burma, China, Cook Islands, Democratic Kampuchea, Democratic People's Republic of Korea, Fiji, France, India, Indonesia, Japan, Kiribati, Korea (Republic of), Lao People's Democratic Republic, Malaysia, Maldives, Nauru, Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Samoa, Singapore, Solomon Islands, Sri Lanka, Thailand, Tonga, Tuvalu, United Kingdom, United States of America, Vanuatu and Viet Nam.
When the draft agreement was circulated to governments prior to the Conference of Plenipotentiaries, eligibility for membership gave rise to comments by the United Kingdom only which indicated that it might be necessary to include a specific provision covering Hong Kong. As regards the Annex listing countries invited to the Conference of Plenipotentiaries, the United Kingdom observed that the relationship between the countries themselves and the territories for whose international relations they were responsible (shown in brackets after the country), should be clarified.25 At the Conference of Plenipotentiaries the question of eligibility for original membership gave rise to several questions. The first was the need to allow for the possible emergence of new states in the region. After considerable debate, the first part of the second paragraph which read "The original members of INFOFISH shall be the states which, having been invited to the Conference of Plenipotentiaries at which the present Agreement was adopted ...", was amended to read "The original members of INFOFISH shall be the states in the Asia and Pacific region, in particular those invited to the Conference of Plenipotentiaries at which the present Agreement was adopted ...". This amended text calls for some comments. To begin with, the "Asia and Pacific region" is not defined, either politically or geographically. However, the words "in the Asia and Pacific region" definitely include states with only territories in the region, as France, the United Kingdom and the United States were invited to the Conference of Plenipotentiaries and are listed in the Annex to the Agreement, although the names of the territories following the names of the three states were deleted. Further, the use of the words "in particular those invited", even if they were intended to cover states in the region that came into existence after the Conference of Plenipotentiaries, could also be interpreted as meaning that not necessarily all the states in Asia and the Pacific had actually been invited to that conference. Thus, in the new definition of eligibility for original membership, legal certainty was sacrificed on the altar of political susceptibility.
25 Document INFOFISH 5, pp. 4 and 24.
A second question that was considered at the Conference of Plenipotentiaries was the possibility of the draft agreement being amended to permit groupings of states to which competence had been transferred by their members, to acquire membership of INFOFISH. Shortly before the Conference of Plenipotentiaries, the European Economic Community (EEC) informed FAO that although it could not attend the Conference it wished to propose some amendments that would enable the EEC to become a party to the INFOFISH Agreement. This communication and the proposed amendments were brought to the attention of the Conference,26 but did not elicit much support. The participants recognized the desirability of cooperating with international organizations, including the EEC, but no amendments were adopted that would allow a grouping of states to become a member of INFOFISH.
26 Document INFOFISH 6.
Finally, it is clear that countries situated entirely outside the region may be admitted to membership in accordance with Article 6.3. However, largely on the initiative of Australia27 and the Republic of Korea, the conditions for admission of states that are not eligible for original membership were made tighter. The text submitted envisaged a three-quarters majority of the votes cast provided that a majority of members were present and, tentatively, account had been taken of the fish export value of those making up that majority. Article 6.3 of the Agreement as adopted requires not only a three-quarters majority of all the members of INFOFISH, but also the condition that their combined fish export value is not less than fifty percent of the total fish export value of all members of INFOFISH.
27 See comments of Australia in document INFOFISH 5, p. 4
Thus, while INFOFISH remains, in the spirit of the projects from which it developed, primarily an instrument for regional technical and economic cooperation among developing countries, the role of developed countries in the region is fully and realistically recognized, and the possibility of membership of countries from outside the region is not precluded.
LEGAL STATUS, PRIVILEGES AND IMMUNITIES
Legal status, privileges and immunities Article 13.1 of the Agreement establishing INFOFISH provides that the Organization "shall possess juridical personality and such legal capacity as may be necessary for the fulfilment of the Organization's objectives and for the exercise of its functions". At the Conference of Plenipotentiaries this provision was substituted for a rather more explicit clause which, inter alia, described INFOFISH as "an autonomous intergovernmental organization, having the capacity of a legal person to perform any legal act that is necessary or useful for the carrying out of its functions or for the exercise of its powers under this Agreement."28 In whatever terms the legal status of INFOFISH may actually be described in the Agreement, the status of INFOFISH as an intergovernmental organization with international legal personality can be derived from its constitutive instrument read as a whole. Though the description of the legal personality of intergovernmental organizations is very frequently included in their constitutive instruments, the absence of such a provision would in no way mean that they did not have that personality. As far as concerns the legal capacity of INFOFISH, both the original and amended texts were sufficiently broad so as not to lend themselves to interpretations that might inhibit the performance of any of the Organization's functions.
28 In its comments on the draft Agreement (see doc. INFOFISH 5, p. 16), the United Kingdom considered that this provision should be replaced by a more standard provision on legal capacity.
In order for an intergovernmental organization to be able to operate independently, it requires certain privileges and immunities in the states in which it has its headquarters or offices and in other states in which it carries out its activities. The extent to which these privileges and immunities may now be considered to derive from customary international law is a subject that is too broad to be discussed here.29 Suffice it to observe that specific immunities to be accorded to intergovernmental organizations - as well as to their staffs and to representatives of states attending meetings - are frequently referred to in a varying degree of detail in the constitutive instruments of those organizations, or set forth in agreements that they conclude with individual states. The principal advantage of specifying detailed privileges and immunities in the constituent instrument is that, in this way, the organization is from the outset guaranteed certain fundamental and standard conditions for operation in its member states. The principal disadvantage is that some of the provisions may create internal legislative problems for prospective members which could be an obstacle to their becoming a party.
29 For a recent examination of this question, see C. Dominicé, L'immunité de juridiction et d'exécution des organisations internationales, Recueil des Cours de l'Académie de droit international de la Haye, 1984-IV, vol. 187, pp. 174-177.
In the annotated draft agreement that was submitted to the Consultation of Legal Experts, detailed provisions regarding privileges and immunities were inserted in the body of the text and in an annex which contained the essential provisions of a headquarters agreement with the host state. These provisions remained in the revised draft agreement submitted to the Conference of Plenipotentiaries. They elicited some reservations from the United Kingdom and Malaysia30 and were radically altered at the Conference of Plenipotentiaries itself. To begin with, the Annex was deleted so that INFOFISH will now have to negotiate a full headquarters agreement with Malaysia, which was designated as the host state at the First Session of the Governing Council.31 The principal provision on the privileges and immunities of INFOFISH and its staff, as well as representatives at INFOFISH meetings, is now Article 13.3 pursuant to which the member states of INFOFISH are placed in three categories: (i) those that have acceded to the Convention on the Privileges and Immunities of the Specialized Agencies (CPISA)32 in respect of FAO; (ii) those not covered by (i) that have acceded to the Convention on the Privileges and Immunities of the United Nations (CPIUN)33; and (iii) those that have not acceded to either of the Conventions referred to in (i) and (ii). Those in the first category automatically undertake to apply the CPISA mutatis mutandis; those in the second category automatically undertake to apply the CPIUN mutatis mutandis unless they opt out of doing so at the time of depositing an instrument of ratification or accession. Member states that choose not to apply the CPIUN and those in the third category shall within six months of depositing their instrument conclude an agreement with INFOFISH granting the Organization a status and privileges and immunities "comparable" to those provided in the CPISA and CPIUN.
30 Document INFOFISH 5, pp. 16, 29-30.
31 Article 13.5 specifies that such an agreement shall be concluded with the host state and any other states in which offices of INFOFISH are situated.
32 United Nations Treaty Series, vol. 33, p. 261.
33 United Nations Treaty Series, vol. 1, p. 15 and vol. 90, p. 327.
Article 13.3 is a variant on provisions that are contained in the constituent instruments of the two most recently created specialized agencies of the United Nations, the International Fund for Agricultural Development (IFAD) and the United Nations Industrial Development Organization (UNIDO).34 The provisions in question envisage the automatic application of a detailed and widely accepted regime governing privileges and immunities to be accorded by member states in the first category, while recognizing the desirability of a comparable regime being applied by member states falling in the other two categories. In actual practice, the negotiation of a headquarters agreement will be greatly facilitated since Malaysia, the host state, has acceded to the CPISA and is, therefore, in the first category.
34 Article 10, Section 2 of the Agreement Establishing the International Fund for Agricultural Development, United Nations Treaty Series, vol. 1059, p. 191; Article 21 of the Constitution of the United Nations Industrial Development Organization, document A/CONF.90/19.
One point that is left open in the Agreement is what would happen if a member state failed to conclude an agreement on privileges and immunities with INFOFISH within six months of depositing its instrument of ratification or accession.35 This requirement does not exist in the constitutive instruments of IFAD and UNIDO, and has not yet been put to the test, although four out of the present six member states of INFOFISH are in the second or third category.
35 For those states that deposited their instruments before the entry into force of the Agreement, the six months period would presumably have to run as from the date of the Agreement's entry into force.
One of the interesting questions that arises in connection with the immunities of INFOFISH relates to its immunity from legal process. As has been mentioned, the regime covering the privileges and immunities of INFOFISH is that contained in the two general conventions applicable in the United Nations system - the CPIUN and the CPISA. Both these conventions provide that the organizations in question shall enjoy immunity from all forms of legal process except in such cases where the organization has expressly waived that immunity (Article II, Section 2 and Article III, Section 4, respectively). Both conventions provide a corollary for such immunity, designed to ensure that it will not give rise to a denial of justice. The organizations concerned, therefore, have an obligation to provide adequate modes of settlement of disputes arising out of contracts or other disputes of a private law character (Article VIII, Section 29(a) and Article IX, Section 31(a), respectively). Thus, the immunity from legal process is absolute unless waived.
In a few national legal systems, however, there has been a tendency to distinguish between official acts performed by an organization jure imperii and acts performed by it jure gestionis in a private law capacity. International case-law shows clearly that it is a minority view held, in particular, by the Italian courts.36 The distinction between acts of a public nature (jure imperii) and acts of a private law nature (jure gestionis) is a transposition of the immunity of states enjoyed under customary international law. This immunity was originally absolute, but has been restricted under many national legal systems because the activities of sovereign states have gradually extended into fields of commercial and industrial activity.37 It is submitted that the transposition of this general concept to the case of intergovernmental organizations is unjustified and contrary to the very purpose for which such immunity is granted, unless there are express treaty provisions which limit such immunity.38 All acts performed by an intergovernmental organization are in the pursuit of its objectives and hence of a public nature, except perhaps acts that are manifestly ultra vires. An intergovernmental organization is bound to conclude contracts and to enter into other transactions with physical or corporate persons, in order to carry out its programmes. It is precisely to ensure its independence from pressures exerted by individual member states, or harassment through litigation, that immunity from legal process is necessary. Accordingly, for an intergovernmental organization there should be a presumption that its immunity from legal process is absolute, unless there is a provision to the contrary in its constitutive instrument or in an agreement concluded with a given state, or, naturally, if immunity is waived.
36 See Dominicé, op. cit. and, for an analysis of the Italian case-law, A. Cassese, L'Immunité de juridiction civile des organisations internationales dans la jurisprudence italienne, in Annuaire français de droit international, Vol. XXX (1984) pp. 556-566. The distinction between acts performed jure imperii and jure gestionis was made in two cases which involved the interpretation of Section 16 of the Headquarters Agreement between Italy and FAO which is identical in substance to Section 2 of the CPIUN and Section 4 of the CPISA - Porru v. FAO in UN Juridical Yearbook 1969, p. 259 and FAO v. Istituto Nazionale di Previdenza per i Dirigenti di Aziende Industriali (INPDAI) (Judgement No. 5399, Corte di Cassazione, Sezioni Unite Civili of 18 October 1982). In the first case, an employment relationship was considered jure imperii and immunity upheld. In the second case, a lease for office space was considered by the Corte di Cassazione to be a transaction entered into jure gestionis and the Organization's plea of immunity was rejected.
37 The whole question of the extent of the jurisdictional immunity of states is still under consideration by the International Law Commission.
38 See, in this sense, Dominicé, op. cit., p. 180. Article VII.3 of the Articles of Agreement of the World Bank, for instance, expressly recognizes certain limitations to the Bank's immunity from legal process.
In the case of an intergovernmental organization such as INFOFISH which is not only intended to be self-financing through the sale of its services, but which also sells such services to the public at large, one appears to be confronted with an evolution in the methods by which such organizations perform their institutional functions. Indeed, this evolution might even be compared to the entry of sovereign states into fields of activity that used to be carried out only by subjects of municipal law rather than subjects of international law. Furthermore, the type of disputes in which INFOFISH might most likely be involved would be claims brought by private individuals or corporations connected with trade in fishery products, arising out of contracts for its services, or claims relating to liability in tort based on their reliance on marketing information issued by INFOFISH.
It is too early to tell whether the "service organization", of which INFOFISH is an example, will become increasingly prevalent. Nevertheless, there would not appear to be any justification for interpreting treaty provisions relating to immunity from legal process differently on the grounds that one organization's constitutional functions are largely fulfilled through transactions of a commercial nature while another organization's are not. This view is supported by the fact that the immunity regime laid down in the INFOFISH Agreement is based on that of organizations in the United Nations system and includes the obligation to settle disputes of a private law character by alternative methods if it does not wish to waive its immunity and submit to the jurisdiction of a national court.
RELATIONS BETWEEN INFOFISH AND OTHER ORGANIZATIONS
The projects that developed into the establishment of INFOFISH as an intergovernmental organization were not the only ones of this kind executed by FAO. Three other similar projects dealing with the dissemination of market information are currently operational, in Latin America and the Caribbean since 1977 (INFOPESCA),39 in Africa since 1985 (INFOPECHE), and in the Arab countries since 1986 (INFOSAMAK). It is too early to tell what the legal fate of the latter two projects will be but, at least in theory, they could lead to the creation of independent intergovernmental organizations or public or private corporations, or else could be incorporated in other existing institutions. The important fact to be borne in mind is that the regional cooperation, on which INFOFISH and the three above-mentioned projects are based, forms an interregional network through which market information can be obtained and disseminated. At the same time, FAO operates at its headquarters a market information system known as GLOBEFISH which provides information on the supply and demand situation of the principal fishery commodities that are traded internationally.40 Thus INFOFISH and the three projects are essential components of a worldwide system operated with FAO. Consequently, although INFOFISH is now an autonomous intergovernmental organization, it will inevitably have to maintain close links with FAO. This is explicitly recognized in Article 14.1 of the INFOFISH Agreement which provides that "... there should be a working relationship" between INFOFISH and FAO and that INFOFISH shall enter into negotiations with FAO with a view to concluding an agreement pursuant to Article XIII of the FAO Constitution, that is to say, "defining the distribution of responsibilities and methods of cooperation". Article 14.1 goes on to state that such an agreement should provide for the Director-General of FAO "to appoint a representative who would participate in all meetings of INFOFISH, but without the right to vote".
39 This project was financed by the United Nations Development Programme until 1984 and is now mainly dependent on trust funds provided by interested governments and its own income-generating activities. Consideration is being given to INFOPESCA becoming part of OLDEPESCA (Latin American Fisheries Development Organization).
40 For a detailed description of GLOBEFISH see document COFI/FT/I/86/4, submitted to the First Session of the FAO Committee on Fisheries Sub-Committee on Fish Trade, held in Rome in October 1986.
Article 14.2 of the Agreement provides for cooperation between INFOFISH and "other international fisheries commissions or other organizations which might contribute to the work and further the objectives of INFOFISH", and to enter into agreements with them.
For INFOFISH to provide up-to-date marketing information and to carry out its functions in general, it will inevitably have to maintain contacts with organizations of all kinds, both intergovernmental and non-governmental. Whether INFOFISH decides to enter into "formal arrangements" with such organizations, which require approval by the Governing Council under Article 8.1(i), will be a policy matter to be decided by the Governing Council itself.
New intergovernmental organizations appear at what seems, to many countries, an alarming rate. Yet their establishment shows that states recognize that they are useful as a means to achieve cooperation at the intergovernmental level in the most diverse fields. It is interesting that, despite the different legal arrangements that could have been made to continue the work initiated by INFOFISH as a mere project, the states concerned chose an intergovernmental organization without hesitation. Perhaps this decision was made easier by the fact that INFOFISH would, in principle, be self-financing. In this way the governments would maintain direct control over the Organization's activities with comparatively little strain on their treasuries. The nature of INFOFISH as a primarily self-financing "service organization" is in itself rather unusual; the more so because its services are to be sold not only to member states, but also to physical or corporate persons involved in the fish trade. Nevertheless, these features cannot in any way affect the international legal personality of INFOFISH, which is clear from the multilateral treaty establishing the Organization and, in particular, the latter's constitutional structure.
The only major question of international law that flows directly from the type of activities with which INFOFISH has been entrusted relates to the Organization's immunity from legal process. The commercial nature of the services that INFOFISH will render and its close contacts with the fish trade and industry could tempt some national courts to give a restrictive interpretation to the immunity which is envisaged in the Agreement. It has been maintained above that such an interpretation would be ill - cannot discount the overall effect that a proliferation of "service organizations" may have on generally accepted principles regarding the immunity from legal process of intergovernmental organizations.
INFOFISH has now been launched as a regional organization whose membership is likely to be made up mostly of developing countries. At present all the member states are developing countries. However, their cooperation may well be joined by developed countries in Asia and the Pacific, while admission to membership is possible for countries outside the region. Trade knows but few boundaries and increasingly efficient fishing and processing techniques as well as means of transport and refrigeration create new markets or give access to existing markets that were previously unknown or too remote. INFOFISH, with its intergovernmental structure and support, its close contacts with the fish trade, and the experience gained under earlier project operations, is in an excellent position to make a real contribution to the economic development of its member states. Jean Carroz would have been profoundly satisfied with the outcome of efforts to which he had made a significant contribution in his lifetime.