CL 115/5


Council


Hundred-and-fifteenth Session

Rome, 23 - 28 November 1998

REPORT OF THE SIXTY-EIGHTH SESSION OF THE COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS (CCLM)

Rome, 29 – 30 September 1998

 

Table of Contents


 

I. INTRODUCTION

II. ELECTION OF CHAIRMAN AND VICE-CHAIRMAN

III. SAVINGS AND EFFICIENCIES IN GOVERNANCE: WORKING PROCEDURES OF CONFERENCE SESSIONS

IV. REVISION TO THE FORMAT OF THE EXTERNAL AUDITOR OPINION: CHANGE TO THE ANNEX TO THE FINANCIAL REGULATIONS "ADDITIONAL TERMS OF REFERENCE GOVERNING EXTERNAL AUDIT"

V. ARRANGEMENTS FOR REVIEW OF INVESTMENTS OF THE FAO RESERVE FUNDS: AMENDMENT TO FINANCIAL REGULATION 9.1

VI. FORMAL CONFIRMATION OF THE VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS: GENERAL ASSEMBLY RESOLUTION 52/153

VII. OTHER MATTERS

 

APPENDICES

A. Possible Draft Amendments to the General Rules of the Organization
Abolition of the Nominations Committee 5

B. Possible Draft Amendments to the General Rules of the Organization
Introduction of Electronic Voting 7

C. Possible Draft Amendments to the General Rules of the Organization
Voting Procedures for Elections 9

D. Proposed Amendments of Paragraph 5 of the Annex to FAO’s Financial
Regulations 10

E. Amendments to Financial Regulation 9.1 11

 


 

 

I. INTRODUCTION

1. The Sixty-eighth Session of the Committee on Constitutional and Legal Matters (CCLM) was held on 29 and 30 September 1998. All the Members of the Committee, with the exception of the Dominican Republic, as listed below, were represented:

Czech Republic, Democratic People’s Republic of Korea, France, Malta, Senegal and the United States of America.


 

II. ELECTION OF CHAIRMAN AND VICE-CHAIRMAN

2. The Committee elected Dr. Milan Beránek (Czech Republic) as Chairman.

3. The Committee elected Mr. Moussa Bocar Ly (Senegal) as Vice-Chairman.


 

 

III. SAVINGS AND EFFICIENCIES IN GOVERNANCE: WORKING PROCEDURES OF CONFERENCE SESSIONS

4. The Hundred and fourteenth Session of the Council in November 1997 mandated the Joint Meeting of the Programme and Finance Committees to review the procedures and methods of work for Conference sessions including voting and relevant General Rules of the Organization (GRO). The Council requested the Joint Meeting to report to the Hundred and Fifteenth session of the Council in November 1998 through the CCLM.

5. In May 1998, the Joint Meeting of the Seventy-ninth Session of the Programme Committee and the Eighty-ninth Session of the Finance Committee commenced its review and made some preliminary suggestions. It requested the Secretariat to prepare a document for submission to the Joint Meeting to be held on 23 September 1998 and to submit also such document to the CCLM for its consideration together with the report of the Joint Meeting of 23 September 1998, in accordance with the Council decision noted above.

6. The CCLM reviewed the Secretariat proposals set out in document JM 98/6 and the recommendations set out in the report of the Joint Meeting of 23 September 1998, and had an extensive exchange of views on the proposals that may require amendments to the Basic Texts of the Organization, in particular the abolition of the Nominations Committee, the introduction of an electronic voting system and the voting procedures for elections.

7. As regards the possible abolition of the Nominations Committee and the transfer of its functions to the Council, the CCLM identified the following provisions of the Basic Texts which would need to be amended: Rules VII.2 and 3, Rule VIII and Rule XXIV.5(b) of the GRO.

8. With respect to the introduction of an electronic voting system, the CCLM considered that this would require amendments to Rule XII.4(c) and the introduction of a new Rule 7bis GRO.

9. With respect to the recommendation of the Joint Meeting that no voting should be required when the number of candidates equals the number of vacancies or when there is only one candidate for one post, the CCLM considered that this recommendation would require the amendment of Rule XII. 9(a) GRO. The CCLM also considered that the matter should be decided first at the political level especially insofar as the election of the Chairman of the Council, the Director-General and the Members of the Council are concerned. The CCLM was of the opinion that the admission of additional Member Nations should continue to be decided by secret ballot.

10. The CCLM did not see any legal difficulties in the recommendation of the Joint Meeting that the members of the Credentials Committee be nominated by the Council and that the preparatory work on the validation of credentials be carried out as far as possible before the opening of the Conference. The Credentials Committee would, of course, need to be formally elected by the Conference. Any preparatory work done prior to the Conference would, thus, need to be formally confirmed by the Committee once it is formally elected. Regarding the form of credentials, the CCLM considered that the Credentials Committee should be allowed a certain degree of flexibility in the light of the practice followed by the United Nations and other agencies of the United Nations system. The CCLM requested the Secretariat to prepare a paper describing the practice of selected organizations of the UN system with respect to acceptance of credentials for consideration at its next session.

11. The CCLM took note of a series of possible amendments to the GRO reflecting the above points prepared by the Secretariat, which it used as a basis for its discussions. It decided that these possible draft amendments should be appended to this report as Appendices A, B and C, reflecting the recommendations on the abolition of the Nominations Committee, the introduction of an electronic voting system, and the voting procedures for elections, respectively. The CCLM considered that these possible draft amendments could form the basis for its further discussions on this matter at its next session, in the light of the decisions and recommendations of the Council.

12. In discussing these draft amendments, the CCLM noted that the mechanism of the technical committees referred to in Rule VII.1 and Rule XV.3 (GRO) had not been resorted to by the Conference for many years. It decided to request the Secretariat to prepare a background document outlining the history of these provisions, and to consider, at its next session, subject to any guidance from the Council, whether Rule XV.3 and the reference in Rule VII.1 should not be deleted.


 

 

IV. REVISION TO THE FORMAT OF THE EXTERNAL AUDITOR OPINION: CHANGE TO THE ANNEX TO THE FINANCIAL REGULATIONS "ADDITIONAL TERMS OF REFERENCE GOVERNING EXTERNAL AUDIT"

13. The CCLM noted that the Finance Committee, at its Eighty-ninth Session in May 1998, had approved a proposed amendment of paragraph 5 of the Annex to the Financial Regulations to change the format of the External Audit opinion and recommended that it be forwarded to the Council for onward transmission to the Conference.

14. The CCLM reviewed the proposed amendment and considered it to be in proper legal form and consistent with the Basic Texts of the Organization and consequently recommended that the amendment set out in Appendix D to this Report be endorsed by the Council at its Hundred and fifteenth Session and transmitted to the Thirtieth Session of the Conference in November 1999 for adoption.


 

 

V. ARRANGEMENTS FOR REVIEW OF INVESTMENTS OF THE FAO RESERVE FUNDS: AMENDMENT TO FINANCIAL REGULATION 9.1

15. The CCLM noted that the Finance Committee at its Eighty-ninth Session in May 1998 had endorsed in principle the proposal that the FAO Internal Investment Committee and the FAO Advisory Committee on Investment replace the oversight function performed by the United Nations Investment Committee (UNIC) over the investments of the FAO Reserve Fund assets. The Finance Committee had requested that a more detailed paper, including necessary changes to the Financial Regulations, be submitted to it at its next session.

16. The CCLM also noted that the Finance Committee at its Ninetieth Session in September 1998 had endorsed the amendments to Financial Regulation 9.1 as set out in Appendix E to this Report and recommended that they be forwarded to the Council at its next session for approval and then to the Conference for adoption.

17. The CCLM reviewed the amendment proposed by the Finance Committee and found it consistent with the Basic Texts of the Organization. The CCLM concurred with the recommendation of the Finance Committee that the proposed amendment be endorsed by the Council at its Hundred and fifteenth Session, in November 1998, and transmitted to the Thirtieth Session of the Conference in November 1999 for adoption.


 

VI. FORMAL CONFIRMATION OF THE VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS: GENERAL ASSEMBLY RESOLUTION 52/153

18. The Committee considered the question of the formal confirmation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, in light of General Assembly Resolution 52/153 on the "United Nations Decade on International Law". That Resolution encouraged States to consider ratifying or acceding to the Convention and "international organizations that have signed the Convention to deposit an act of formal confirmation of the Convention and other international organizations entitled to do so to accede to it at an early stage".

19. The CCLM noted that the Council, at its Ninety-first session in June 1987, had considered the matter on the basis of a report of the Committee, at its Forty-ninth session of April 1987. The Council had shared the CCLM’s view that it would be desirable for the Convention eventually to become applicable to the treaties concluded by FAO and, consequently, authorized the Director-General to arrange for its signature on behalf of FAO. The Convention was signed on behalf of FAO on 29 June 1987. However, at that time the Council also noted that it would be premature for FAO to deposit an instrument of formal confirmation, since the Convention would only enter into force upon ratification or accession by 35 States, while the deposit of instruments of formal confirmation by international organizations did not count towards its entry into force. Therefore, the Council agreed with the CCLM that the question of FAO becoming a party to the Convention should be considered at a later date and that a decision on such a question should be taken by the Conference.

20. In reviewing the matter again, in light of General Assembly Resolution 52/153, the CCLM noted that, as of 5 August 1998, only 24 States had deposited instruments of ratification or accession. Consequently, in accordance with Article 85, paragraph 1 of the Convention, which provides that it will enter into force after ratification or accession by 35 States, the Convention has not yet entered into force. The CCLM was also informed that although the Convention was signed by the United Nations and by 8 Specialized Agencies, none of these organizations has formally confirmed it. Finally, the CCLM took note of the fact that General Assembly Resolution 52/153 fell short of authorizing the UN Secretary General to confirm the Convention.

21. In light of the foregoing, the CCLM reiterated the guidance provided on the matter in April 1987. In particular, the CCLM expressed the view that it would be premature for FAO to deposit an instrument of formal confirmation of the Convention and recalled that a decision on such matter should be taken by the Conference. The CCLM recommended that the status of the Convention be monitored and, once the Convention enters into force and an instrument of formal confirmation is deposited on behalf of the United Nations, the issue of its formal confirmation by FAO be placed on the agenda of the Conference, for appropriate action.


 

VII. OTHER MATTERS

The Right to Food

22. At the request of the CCLM, the Legal Counsel informed members of recent and proposed events in implementation of Commitment 7.4 of the World Food Summit Plan of Action which, inter alia, mandated the UN High Commissioner for Human Rights to clarify the content of the rights related to food. These included in particular the convening by the High Commissioner of a consultation on the right to food in FAO Headquarters on 18 and 19 November 1998 and a ceremony to be held with the Italian Government to celebrate the 50th Anniversary of the Universal Declaration of Human Rights on December 10, 1998, as well as various commemorative publications on the right to food.


 

APPENDIX A

POSSIBLE DRAFT AMENDMENTS TO THE GENERAL RULES OF THE ORGANIZATION

ABOLITION OF THE NOMINATIONS COMMITTEE*

 

Rule VII

Nominations

1. The Chairman of the Conference, the Chairmen of the Commissions of the Conference, the three Vice-Chairmen of the Conference, the members of the Credentials Committee and the elected members of the General Committee, provided for by Rule X, paragraph 1. [and the Rapporteur on the work of the Committees referred to in Rule XV.3] shall be nominated by the Council.

2. The nominations Committee, elected by the council in pursuance of Rule XXIV, paragraph 5(b), shall propose to the Conference nominations for the offices of three Vice-Chairmen of the Conference, for the members of the Credentials Committee and for the elected members of the General Committee, provided for by Rule X, paragraph 1.

3. The Chairman of the Nominations Committee shall be elected by the Committee. He shall have, in relation to meetings of the Committee, the same powers and duties as the Chairman of the Conference has in relation to meetings of the Conference. A majority of the members of the Committee shall constitute a quorum. Decisions in the Committee shall be taken by a majority of the votes cast. No member shall have more than one vote. Meetings of the Committee shall be held in private unless otherwise determined by the Conference.

Rule VIII

Election of Chairman and Vice-Chairmen of the Conference and of the members of the Credentials and General Committees

The Conference shall, after consideration of the Report of the Council and the Nominations Committee, elect:

(a) from the delegations, a Chairman and three Vice-Chairmen;

(b) from the Member Nations:

(i) the Credentials Committee, as provided in Rule III, paragraph 3;

(ii) the seven members of the General Committee to be elected as provided in Rule X, paragraph 1.

 

Rule XXIV

Functions of the Council

5. General

The Council shall:

(b) propose candidates for the office of Chairman of the Conference,the and Chairmen of the Commissions of the Conference, the three Vice-Chairmen of the Conference, the members of the Credentials Committee and the elected members of the General Committee ; and elect the Nominations Committee of the Conference, consisting of 11 Member Nations;

 

 

Rule XLII

Arrangements for the Conference

2. Member Organizations shall not participate in the Credentials Committee, the Nominations Committee or the General Committee or any other body of the Conference dealing with the internal working of the Conference as the Conference may decide.

 

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*Words struck out are to be deleted and words underlined are to be inserted.


 

APPENDIX B

POSSIBLE DRAFT AMENDMENTS TO THE GENERAL RULES OF THE ORGANIZATION

INTRODUCTION OF ELECTRONIC VOTING*

Rule XII

Quorum and voting arrangements at meetings of Conference and Council

4 …

(c) Abstentions shall be recorded:

(i) in a vote by show of hands, only for those delegates or representatives who raise their hands in response to the Chairman’s request for abstentions;

(ii) in a roll call vote, only for those delegates or representatives who reply "Abstention";

(iii) in a secret ballot, only for such ballot papers deposited in the ballot box as are either blank or marked "Abstention".

(iii bis) in a vote by electronic means, only for those delegates or representatives who indicate "abstention".

6. Voting shall be by show of hands, roll call or secret ballot.

7. (a) Subject to the provisions of paragraph 9 of this Rule, a vote by roll call shall be taken either upon request of a delegate or representative, or if a majority of two thirds is required by the Constitution or these Rules. Voting by roll call shall be conducted by calling in English alphabetical order the names of all Member Nations entitled to vote. The name of the first nation to be called shall be designated by lot drawn by the Chairman. The delegate or representative of each Member Nation shall reply "Yes", "No", or "Abstention". At the conclusion of any roll call, the name of any Member Nation whose delegate or representative failed to answer shall be called again. The vote of each Member Nation participating in any vote by roll call shall be inserted in the record of the meeting.

(b) The count and recording of votes by show of hands or by roll call shall be conducted by or under the supervision of the Conference or Council elections officer, appointed by the Director-General in accordance with the terms of paragraph 16 below.

(c) If for two successive ballots by roll call the name of the same nation is drawn, the name of another nation shall be designated by lot or lots drawn by the Chairman.

7 bis. When the Conference or Council votes by electronic means, a vote without recording names shall replace a vote by show of hands and a nominal vote shall replace a roll-call. In the case of a nominal vote, the procedure of calling out the names of the members shall not be applicable unless the Conference or Council otherwise decides. The vote of each member participating in a nominal vote shall be inserted in the record.

 

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*Words struck out are to be deleted and words underlined are to be inserted.


 

APPENDIX C

POSSIBLE DRAFT AMENDMENTS TO THE GENERAL RULES OF THE ORGANIZATION

VOTING PROCEDURES FOR ELECTIONS*

Rule XII

Quorum and Voting Arrangments at meetings of Conference and Council

9.  (a) The appointment of the Chairman of the Council and of the Director-General, the admission of additional Member Nations and Associate Members, and the election of Council Members shall be decided by secret ballot. Other elections Elections shall likewise be decided by secret ballot, except that in the case of an election in which there are not more candidates than vacancies the Chairman may submit to the Conference or Council that the appointment be decided by clear general consent. The admission of additional Member Nations and Associate Members shall also be decided by secret ballot.

(b) Any other matter shall be decided by secret ballot if the Conference or Council so determines.

 

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*Words struck out are to be deleted and words underlined are to be inserted.


 

APPENDIX D

PROPOSED AMENDMENTS OF PARAGRAPH 5 OF THE ANNEX TO FAO’S FINANCIAL REGULATIONS

 

"The External Auditor shall express and sign an opinion on the financial statements. The opinion shall include the following basic elements:

a) the identification of the financial statements audited;

b) a reference to the responsibility of the entity’s management and the responsibility of the auditor;

c) a reference to the audit standards followed;

d) a description of the work performed;

e) an expression of opinion on the financial statements as to whether:

- the financial statements present fairly the financial position as at the end of the period and the results of the operations for the period;
- the financial statements were prepared in accordance with the stated accounting policies; and
- the accounting policies were applied on a basis consistent with that of the preceding financial period;

f) an expression of opinion on the compliance of transactions with the financial regulations and legislative authority;

g) the date of the opinion;

h) the external auditor’s name and position; and

i) should it be necessary, a reference to the report of the External Auditor on the financial statements."

 


 

APPENDIX E

AMENDMENTS TO FINANCIAL REGULATION 9.1*

 

Regulation IX - Investment of funds

9.1 The Director-General may invest moneys not needed for immediate requirements seeking, wherever practicable, the advice of  the United Nations Investment Committee an Advisory Committee on Investments composed of not less than three and not more than five members appointed by the Director-General from persons outside the Organization having substantial experience in the financial sector. The investment of moneys standing to the credit of any trust fund, reserve or special account shall be subject to any directives of the appropriate authority.

 

 

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*Words struck out are to be deleted and words underlined are to be inserted.