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XVI. Appendix G. Explanation of votes on Resolution 7/91- Amendments to the basic texts of the organization

Antonio CABRERA MANO FILBO (Brazil): The Brazilian delegation would like to register the views of its Government concerning this resolution.

First of all, let me stress once again that the Brazilian Government firmly supports the admission of the EEC in FAO, in the belief that its participation will surely contribute to strengthen FAO activities and initiatives. It was this positive attitude that led the Brazilian Government to support this resolution.

However, the understanding of my Government is that the form of this admission will have political implications for the whole multilateral system. As such, some technical and juridical aspects of the modifications in FAO Basic Texts must be deeply examined and clarified. The Brazilian delegation has participated in the working group led by the Honourable Ambassador, Bula Hoyos, from Colombia, and expressed on several opportunities the points of views of the Brazilian Government.

Regarding Article II.3, the Brazilian Government thinks that the admission of Regional Economic Integration Organizations as a member in the same juridical category as countries is not the appropriate solution. The establishment of a juridical similarity, within FAO membership between REIOs and states, entities that are juridically so distant, may create an important precedent in the United Nations multilateral system that may have serious and unforeseen consequences.

The Brazilian Government fully agrees with the CCLM that, from a juridical point of view, it would be more appropriate to admit REIOs in FAO as "'Member Organizations," as opposed to Member States, in order to reflect more precisely the sui generis kind of membership of REIOs.

With respect to Article II.4, the Brazilian Government believes that the final text and particularly the commentary included by proposal of Colombia after Article II.4 makes it very difficult for REIOs other than the EEC to apply to be admitted in FAO as a member. My Government is of the view that the eligibility criteria should be more flexible. The Brazilian Government also thinks that the text is already too restrictive. Therefore, any REIOs that managed to fulfil the necessary requirements should have the right to be admitted in FAO, in the same way I am sure, the EEC will be. We will not accept further discrimination against REIOs.

Concerning Paragraph 3 of Rule XLI, the Brazilian Government is of the opinion that its final text is not compatible with the principle of alternative rights of participation of Member Organizations. The most appropriate text would be one that gives the right to speak as a member to only one party, either the REIO or its Member States, but never both. The intervention of the other party, if allowed, could be reflected in the report only in the same quality as interventions of observers. My Government expects that the present text does not result in the REIO having an additional voice - in the case of the EEC, having 13 interventions of members reflected in the report. If this happens, the Brazilian Government reserves its position to reconsider this issue again in the coming conferences.

The Brazilian delegation requests that this declaration be included in extenso in the report of this Conference and taken into account in future discussions of this issue in FAO or other fore.

Ricardo VELAZQUEZ HUERTA (Mexico): Thank you for giving me the floor to explain my delegation's vote on this issue, which is, in our opinion, of enormous importance.

In our view, the Basic Texts were very carefully drafted by the founder members in order to set out precisely the reasons for establishing FAO, how it should be organized in accordance with the exigencies at that time, and the rules of behaviour for members.

We are of course in a period of dynamic activity in the field of economics and international politics, and the Organization has to adjust to these changes. In this connection, my country proposed to the Plenary Session of the Conference, in the intervention made by the head of my delegation last week, that the Conference give an express mandate to the Programme Committee to prepare an appropriate document, with all due speed, setting out the options to define the future profile of our Organization.

The admission of REIOs deserves our vote in favour, since we know that these organizations will certainly make a positive contribution to FAO activities.

We should, however, have liked the Resolution to include matters that we deem to be legally indispensable and which we have already raised, unfortunately without success, in Commission III. The amendment to which the Chairman of the ad hoc Group, Ambassador Bula Hoyos, referred, served as a compromise text which, in a way, included the points made by my delegation but raised other questions requiring new responses that my delegation will put forward when the occasion arises in future discussions.

For the time being, suffice it to stress that the legal nature of the REIOs and that of Member Nations and associate members is different, and this should be indicated in the Basic Texts. It would have been correct for the draft Resolution to set out categorically the sui generis member status of REIOs, noting of course that this was not a pejorative distinction but merely a definition of their legal nature. No-one has given us any legally valid reason for not including this concept in the Resolution. Moreover, the first part of paragraph 260 of the Secretariat Report contained in document C 91/LIM/23 states that: "The Council reiterated that the form of membership for regional economic integration organizations must be sui qeneris. It was agreed that this would require further precision in the FAO Constitution."

It is also essential, in our opinion, to clarify paragraph 2 of Rule XLI. Although the translation error noted by the Legal Counsel was an attempt to improve the text, we are still deeply concerned that, before each meeting, there should be a clear statement as to who will have competence over a specific issue and who will exercise the right to vote on agenda items. This is why we approved the Resolution with reservations on these two points.

It must be emphasized that my delegation's proposal is merely, in the legal tradition of my country, to define concepts that could cause confusion for future generations and fail to reflect correctly the wishes of countries. The points we have raised have been with a view to maximum benefit and maximum clarity with regard to the admission of REIOs to FAO.

John KNOX (United States of America): By deciding to amend the Basic Texts to open membership in the FAO to regional economic integration organizations, we have taken an extremely important step in the life of this Organization.

We were asked to take this step because of the unique, far-reaching nature of the economic integration taking place within the European Community. That integration has focused on the areas of food and agriculture. It is understandable that as the nations of the EC transfer more and more of their competence over food and agricultural matters to the EC, they would consider it desirable to have the EC take a more active role in the Food and Agriculture Organization.

At the June Council meeting, all delegations made clear that we had no objection to some sort of membership status for the EC, or for other regional economic integration organizations that might in the future demonstrate the same need for an increased role in the FAO. But it was also clear that the precise form of that status could not be easily determined. This point was graphically demonstrated by the Council's decision to pass on to this Conference draft amendments to the Basic Texts that contained as many as five variants for some provisions.

It is not surprising that the Council proposed so many variants. In determining how regional economic integration organizations might participate in the FAO, we were faced with many difficult questions, such as: What should the criteria for admission of REIOs be? How could a REIO and its members both exercise rights of membership in the FAO? How would other FAO members know which, as between the REIO and its members had competence on any given issue? And what effect would REIO membership in the FAO have on other organizations and agreements, such as the World Food Programme Committee on Food Aid?.

The Council created a working group to resolve these questions. As the group began to address them, it became clear that the problems were even more complex than they first appeared. Indeed, it seemed at times that for every question we could answer, two more appeared, like the mythical hydra that Hercules had to kill as one of his seven labours.

Under these circumstances, my delegation believes that the amendments we have just adopted are remarkably successful. They solve the problems associated with REIO membership in logical and creative ways. My delegation feels that we all owe a debt of gratitude, in particular, to the distinguished Ambassador of Colombia, who played a truly Herculean role in the negotiations.

My delegation would like to take a few moments to discuss some of the most important provisions in the amendments.

At the outset, the amendments established the criteria a REIO must meet in order to apply. Article II.4 states that the REIO must be one to which its members "had transferred competence over a range of matters within the purview of the [FAO]". The commentary makes clear that "transfer of competence" means that "complete power with respect to that subject is transferred and that no residual power remains with the Member States." As we have already noted, it is precisely this type of transfer of competence that has led to the EC to initiate their request for increased status. Only when a REIO has been given a part of its members' sovereignty over matters within the FAO's purview, so that its members are no longer able to act with respect to those matters, is there any real need for the REIO to have an increased status in the FAO.

Of course, as we all recognize, the EC is at the moment unique in having such competence. Nevertheless, the amendments wisely are not limited to the EC per se. On the contrary, by their terms they apply to all REIO that are able to meet the criteria they set. At the moment, the EC is the only REIO that can meet the criteria; but in the future it is possible that other regional organizations will follow the EC down the road toward greater economic integration.

My delegation would also like to note that the amendments clearly state what a REIO's competence has to include: that is, "the ability to take decisions binding on its member states", which includes the ability to enter into treaties. Again, this requirement is completely logical; indeed, it is difficult to see what competence might mean if not the ability to take binding decisions, including the ability to enter into treaties.

Perhaps the most fundamental provision in the amendments is Article II.8, which establishes the principle of alternative exercise of membership rights. That principle provides that a Member Organization shall only exercise the rights of membership within its competence, and only when its members do not exercise their rights. My delegation continues to believe that, as we stated at the June Council, this principle is the only possible basis for REIO membership in the FAO, since it ensures that such membership does not increase the rights possessed by the REIO and its members.

There are many specific applications of the principle throughout the amendments. For example, Article II.9 states that Member Organizations may participate in any meeting in which their members are entitled to participate, but that they cannot be elected or designated to any FAO body in their own right. Article II.10 makes clear that either the REIO or its members, but never both, shall have the right to vote on a specific issue.

Another crucial group of amendments concerns the distribution of competence between the REIO and its members. The amendments make clear that, with respect to any specific issue, either the REIO or its members will have competence. My delegation strongly believes that the other members of the FAO should always be able to know where competence lies on a particular issue.

We are therefore pleased to see that Rule XLI.1 allows any member of the FAO to ask at any time a Member Organization and its members to state which of the two has competence with respect to any specific issue. We are also pleased that Rule XLI.2 requires the Member Organization or its members to state before any FAO meeting which, an between them, has competence with respect to the specific questions to be discussed at the meeting. Nor are FAO members left at a loss until they receive an answer, since Article II.6 establishes that until it is clear that the Member Organization has competence over a specific issue, FAO members are entitled to presume that the REIO's Member States continue to have competence over it.

These provisions subordinate, however, to the most important way in which the FAO membership will know how competence is distributed between the EC and its members. Article II.5 requires the REIO, at the time of application, to submit a declaration "specifying the matters in respect of which competence has been transferred to it by its Member States".

This requirement is critical in two ways. First, for the FAO to decide to admit the REIO, it is necessary to establish that it has competence over matters within the FAO's purview. Second, FAO members will rely chiefly on this declaration, rather than on the provisions cited above, to know where responsibility lies on particular issues.

For that reason we await with great anticipation the declaration of competence to be submitted by the EC. We hope that it will be sufficiently detailed and clear to allow us to take affirmative action on their application at this Conference.

My delegation would like to note briefly that the step we have just taken, while important in the life of the FAO, will have limited effect on other organizations. As the FAO Legal Counsel made clear at the June Council meeting, membership by a REIO in the FAO will not entitle it to join other international organizations or agreements, even those that are open to accession to all Member States of UN specialized agencies.

Membership by a REIO in the FAO will, of course, open the door for it to participate in bodies, such as the World Food Programme Committee on Food Aid, run jointly by the FAO and other international organizations. But its participation will be necessarily limited to acting on behalf of its members. Article II.9 makes clear that it will not be eligible for election or designation to such bodies in its own right. In addition, we understand that the basic texts of those organizations will have to be appropriately amended to provide for participation by Member Organizations.

And, needless to say, Member Organizations will be eligible to participate in Article XIV agreements when those agreements provide for such participation.

Finally, my delegation would like to say something about the nature of the membership status of REIOs in the FAO. As many delegations have noted, Member Organizations will have a sui generis status in the FAO. The unique nature of their membership, clearly different from that of states, is made clear throughout the amendments we have just adopted.

We are sympathetic to the suggestion made by some delegations that the sui generis status should be made even clearer, perhaps by stating that REIOs join as "'Member Organizations," rather than "members". We note that the CCLM stated that such a formulation would be legally clearer. But we share the view of the distinguished representative of the Philippines that the amendments already establish the unique status of Member Organizations, and make clear that they will participate on different terms than do Member States.

Carlos KELLER SARMIENTO (Argentina): Countries that are going through, or have gone through, the process of modifying their constitution know the enormous difficulties involved in changing a text that is basic to their institutional and democratic structure, and the far-reaching internal debates this arouses for those who live and have to live with a "plan for life together", as they call the constitution that has guided them and protected their rights for many years or even centuries.

It is truly remarkable that FAO Member Nations have managed, when the proposals have been before them for less than six months, to change a Constitution that affects not just the people of one country, but the 151 FAO Member Nations.

The harmonization of so many viewpoints in so little time reflects considerable credit on this institution and the nations sponsoring these amendments, but some doubts remain as to whether the significance of this decision and its implications for the United Nations system have been duly and exhaustively assessed.

The Argentine Republic would have preferred that, in making such an important change in the Organization's Basic Texts, there had been a consensus of all Member Nations on the method of approaching the major questions involved in the reform, namely:

- the membership status to be granted to REIOs;
- the criteria for their admissibility)
- the regulation of the strictly alternative exercise of rights between REIOs and their members.

The approved texts, Mr Chairman, do not fully meet the criteria that my Government feels should govern the rules applicable to the entrance and participation of REIOs in the life of FAO.

In the first place, there is no clear or precise establishment of a new, specific category of member distinct from Member Nations; on the contrary, REIOs are assimilated to nations. The Argentine Republic considers that this departs from decisions reached by the Organization's Council at its 98th and 99th Sessions, creating a particularly disturbing precedent for the whole of the United Nations system.

Secondly, the Argentine Republic considers it inappropriate that the factor behind this reform has not been mentioned in the text of the Constitution. I refer to the fact that Member Nations of REIOs are no longer empowered to act in certain areas, as a result of the transfer of competence. Ironically, this factor, which should constitute the pointer on the dial, both for establishing the need for a REIO to enter our Organization and for setting out the parameters and limits of its activity within it, has been reduced to a commentary on the text of a Resolution.

My delegation notes that some of the texts, perhaps due to last-minute changes, could lend themselves to ambiguous interpretation. It will not have escaped your attention, or that of my distinguished colleagues, that some parts of the text refer to "transfer of competence" while others merely mention "competence" or "matters within their competence". We feel that these latter terms are subordinate to the interpretation of Article II, pare. 4, of the Constitution given in the comment included in the Resolution we have just adopted.

In conclusion, Mr Chairman, allow me to predict that the constitutional reform taking shape today will bring innumerable benefits to our Organization, leading to better and more efficient performance of its tasks, and pursuance of the high purposes for which it was created. We have no doubt that the admission of REIOs into FAO will contribute decisively to this. We trust that, in the specific case of the EC, that Community will respond to the expectations of all FAO Members, including the Argentine Republic with its deep ties with the countries of the Organization, not only for political, ethical and cultural reasons, but also because of joint interests and projects in the field of economics and cooperation.

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