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VII. Constitutional and administrative matters

A. Constitutional and legal matters
B. Administrative and financial matters
C. Personnel matters

A. Constitutional and legal matters

Statutory report on statue of conventions and agreements, and amendments thereto
Membership of regional economic integration organizations in FAO
Cooperation agreement between the African Development Bank (ADB), the African Development Fund (ADF) and the Food and Agriculture Organization of the United Nations (FAO)
Revision of conference resolution 46/57 and the appendix thereto (Part R. volume II of the basic texts
Amendments to the general regulations of WEP
Observations on the terms of reference of the committee on constitutional and legal matters (CCLM)

Statutory report on statue of conventions and agreements, and amendments thereto

a) Multilateral treaties deposited with the director-generals

288. Pursuant to Rule XXI of the General Rules of the Organization, and in accordance with established practice, the Director-General submitted to the Conference the biennial Statutory Report reflecting the status of multilateral treaties concluded within the framework of FAO and deposited with him; the statue of other multilateral treaties concluded outside the framework of FAO in respect of which the Director-General acts as depository; and the status of the Convention on the Privileges and Immunities of the Specialized Agencies as applied to FAO. The Conference noted that the Statutory Report followed the same pattern as earlier reports.

289. The Conference noted with satisfaction that the amendment to Article I (a) of the Plant Protection Agreement for Asia and the Pacific Region relating to the definition of the Region, referred to in paragraphs 40 to 43 of the Statutory Report, which had been approved by the Eighty-fourth Session of the FAO Council, in November 1983, had come into force on 23 May 1990.

290. With respect to the International Plant Protection Convention (IPPC), mentioned in paragraphs 19 to 25 of the Statutory Report, the Conference noted with satisfaction that, as a result of the appeal launched at its last session to Contracting Parties that had not yet accepted it, the Revised Text of the Convention had entered into force on 4 April 1991.

291. The Conference underlined the importance of the International Plant Protection Convention in strengthening international action against the spread of important plant pests and its importance especially within the context of international trade. It sincerely hoped that the Convention would become a truly universal instrument. The Conference therefore appealed again to all States that had not yet adhered to the Convention to deposit an instrument of adherence with the Director-General as soon as possible.

Membership of regional economic integration organizations in FAO

a) Amendments to basic texts of the organization

292. The Conference recalled that the Council, at its Ninety-ninth Session in June 1991, had decided to propose draft amendments to the Basic Texts of the Organization to allow for membership by Regional Economic Integration Organizations in FAO on the understanding that such proposals did not constitute a commitment on its part, since this was a matter within the competence of the Conference. The Council had agreed to transmit the text of the proposed amendments to the Conference for consideration at its Twenty-sixth Session, November 1991, including alternative texts, where no consensus had yet been reached. In accordance with the provisions of Article XX.4 of the Constitution, the Director General had given notification to the Member Nations of the proposed amendments.

293. The Conference also recalled that the Council had established a Committee consisting of a limited number of Member Nations, selected by the Director-General after consultation with the regional groups, to review the texts, and in particular, those provisions on which consensus had not been reached, and for which alternative texts had been proposed. The Council had further decided that the texts should subsequently be reviewed by the Committee on Constitutional and Legal Matters (CCLM) at its Fifty-seventh Session, and that the CCLM and the Committee should report thereon to the Council at its Hundredth Session.

294. The Conference noted that the Committee of Member Nations Established to Review the Proposed Amendments to the Basic Texts of the Organization to Allow for Membership of Regional Economic Integration Organizations in FAO (REIOC) had held its First Session from 9 to 13 September 1991, and a Second Session from 2 to 4 October 1991, under the Chairmanship of Ambassador Bula-Hoyos (Colombia) and that their Reports had been transmitted to the CCLM.

295. The Conference noted further that the CCLM had examined these Reports at its Fifty-seventh Session, under the Chairmanship of Ambassador Poulides (Cyprus), and had decided that, although the texts transmitted by the Council to the Conference were the only official proposals presented to the Conference, the Compromise Text in the report of the Second Session of REIOC reflected the extent of agreement on a possible single text at that time. The CCLM had thus based its discussion largely on that Compromise Text, bearing in mind that the Compromise was ad referendum, and should be considered in conjunction with the texts of the amendments which had been transmitted by the Council to the Conference, as well as the Report of the First Session of REIOC.

296. The Conference noted that, subsequently, further informal consultations had been held by the Director-General with members of the REIOC concerned and representatives of the European Economic Community, and that the consultations had focused on Article II.2 bis, Article II.3 and Rule XLIV. Finally, subsequent informal consultations had taken place and, as a result thereof, the Chairman of REIOC had proposed a compromise text of the foregoing Articles.

297. The Conference noted that, at its Fifty-seventh Session, the CCLM had considered the effective date of the proposed amendments to the Constitution, in the light of the provisions of Article XX.2 of the Constitution. The CCLM had concluded that, since the proposed amendments to Article XVIII.6 would provide that a Member Organization "shall pay to the Organization a sum to be determined by the Conference, to cover administrative and other expenses arising out of its membership in the Organization", the admission of Member Organizations would not involve new obligations for Member Nations or Associate Members and, therefore, the proposed amendments to allow for membership of such Organizations would, if adopted, take effect forthwith.

298. The Conference noted finally that the Council had agreed to transmit to it, for consideration as possible amendments to the texts which had already been transmitted to it by the Council in June 1991, the Chairman' a Compromise Text as set out in the Second Report of REIOC, and as modified and completed by the single text proposed by the Chairman of REIOC on the three outstanding items, in the form of a single Compromise Text as set out in an appendix to the Report of the Council.

299. The Conference took as a basis for its discussions the single Compromise Text which had been transmitted to it by the Hundredth Session of the Council. The Conference recognized that this was a compromise and that it could represent a sound bests for amending the Basic Texts of the organization to allow for the membership of regional economic integration organizations which met the criteria as specified therein.

300. The Conference noted, however, that a few Member Nations, while agreeing to the principle of membership of regional economic integration organizations, still maintained a number of reservations concerning the proposed amendments, in particular: the sui generis status of regional economic integration organizations should be made more specific by the use of the expression "admitted as a Member Organization" "within the limits of their respective competence", rather than "admitted as a Member"; the transfer of competence from Member States to a regional economic integration organization should be specified to provide that such Member States may not exercise competence in respect of those matters for which competence had been transferred and that competence should include the competence to enter into treaties as well as to take decisions binding on its Member States , and the concept of the alternative exercise of membership rights should be fully respected and should apply not only to voting rights but also to speaking rights.

301. The Conference underlined the growing importance of the role of regional economic integration organizations in the world, in particular in a range of matters which fell within the purview of FAO. It wee noted that membership of regional economic integration organizations, in particular those of developing countries, would ensure a more complete dialogue and increased cooperation in helping FAO to achieve its objectives.

302. The Conference adopted without any negative votes, accordingly, the following Resolution:

Resolution 7/91

AMENDMENTS TO THE CONSTITUTION AND THE GENERAL RULES OF THE ORGANIZATION TO ALLOW FOR MEMBERSHIP OF FAO BY REGIONAL ECONOMIC INTEGRATION ORGANIZATIONS

THE CONFERENCE,

Recalling that, at its Ninety-fifth Session, held in June 1989, the Council, after having considered a communication of the Government of Spain regarding the status of the European Economic Community (EEC) with respect to FAO, invited the Director-General to explore the options for a form of membership of FAO for regional economic integration organizations to which their Member States had transferred competence in some fields of activity of the Organization,

Recalling also that, in its Ninety-ninth Session, held in June 1991, the Council agreed to transmit the text of proposed amendments to the Constitution to the Conference for consideration at its Twenty-sixth Session in accordance with paragraphs 3 and 4 of Article XX of the FAO Constitution, and taking into consideration in particular the content of paragraph 260 of the Council Report,

Having considered the text of the amendments to the Constitution and the General Rules of the Organization proposed by the Council in its Ninety-ninth Session as amended on the floor of the Conference:

Decides to amend the Constitution and the General Rules of the Organization as follows:

Constitution

  • 1. Article II of the Constitution is amended by adding after paragraph 2 the following paragraphs:
    •  
  • "3. The Conference may by a two-thirds majority of the votes cast, provided that a majority of the Member Nations of the Organization is present, decide to admit as a Member of the Organization any regional economic integration organization meeting the criteria set out in paragraph 4 of this Article, which has submitted an application for membership and a declaration made in a formal instrument that it will accept the obligations of the Constitution as in force at the time of admission. Subject to paragraph 8 of this Article, references to Member Nations under this Constitution shall include Member Organizations, except as otherwise expressly provided.

    • 4. To be eligible to apply for membership of the Organization under paragraph 3 of this Article, a regional economic integration organization must be one constituted by sovereign States, a majority of which are Member Nations of the Organization, and to which its Member States have transferred competence over a range of matters within the purview of the Organization, including the authority to make decisions binding on its Member States in respect of those matters.

         Commentary

    The term transfer of competence in respect of a given subject includes the transfer of treaty-making powers by Member States and means that complete power with respect to that subject is transferred and that no residual power remains with the Member States.

    5. Each regional economic integration organization applying for membership in the Organization shall, at the time of such application, submit a declaration of competence specifying the matters in respect of which competence has been transferred to it by its Member States.

    6. Member States of a Member Organization shall be presumed to retain competence over all matters in respect of which transfers of competence have not been specifically declared or notified to the Organization.

    7. Any change regarding the distribution of competence between the Member Organization and its Member States shall be notified by the Member Organization or its Member States to the Director-General, who shall circulate such information to the other Member Nations of the Organization.

    8. A Member Organization shall exercise membership rights on an alternative basis with its Member States that are Member Nations of the Organization in the areas of their respective competences and in accordance with rules set down by the Conference.

    9. Except as otherwise provided in this Article, a Member Organization shall have the right to participate in matters within its competence in any meeting of the organization, including any meeting of the Council or other body, other than bodies of restricted membership referred to below, in which any of its Member States are entitled to participate. A Member Organization shall not be eligible for election or designation to any such body, nor shall it be eligible for election or designation to any body established jointly with other organizations. A Member Organization shall not have the right to participate in bodies of restricted membership specified in the rules adopted by the Conference.

    10. Except as otherwise provided in this Constitution or in rules set down by the Conference, and Article III paragraph 4 notwithstanding, a Member Organization may exercise on matters within its competence, in any meeting of the Organization in which it is entitled to participate, a number of votes equal to the number of its Member States which are entitled to vote in such meeting. Whenever a Member Organization exercises its right to vote, its Member States shall not exercise theirs, and conversely."

     2. The existing paragraphs 3, 4 and 5 of Article II are renumbered as paragraphs 11, 12 and 13.

    3. Article XIV, paragraph 3(b) of the Constitution is amended as follows:

  • "(b) contain provisions concerning the Member Nations of the organization, and such non-member States as are members of the United Nations, any of its specialized agencies or the International Atomic Energy Agency, and regional economic integration organizations including Member Organizations. to which their Member States have transferred competence over matters within the purview of the conventions. agreements, supplementary conventions and agreements, including the power to enter into treaties in respect thereto, which may become parties thereto and the number of acceptances by Member Nations necessary to bring such convention, agreement, supplementary convention or agreement into force, and thus to ensure that it will constitute a real contribution to the achievement of its objectives. In the case of conventions, agreements, supplementary conventions and agreements establishing commissions or committees, participation by non-member States of the Organization that are members of the United Nations, any of its specialized agencies or the International Atomic Energy Agency or by regional economic integration organizations other than Member Organizations, shall in addition be subject to prior approval by at least two-thirds of the membership of such commissions or committees;"
    •  4. A new paragraph is added after Article XIV, paragraph 3(b) which reads as follows:
  • "(c) Where any convention, agreement, supplementary convention or agreement provides that a Member Organization or a regional economic integration organization that is not a Member Organization may become a party thereto, the voting rights to be exercised by such organizations and the other terms of participation shall be defined therein. Any such convention, agreement, supplementary convention or agreement shall, where the Member States of the Organization do not participate in that convention, agreement, supplementary convention or agreement, and where other parties exercise one vote only, provide that the organization shall exercise only one vote in any body established by such convention, agreement, supplementary convention or agreement, but shall enjoy equal rights of participation with Member Nations parties to such convention, agreement, supplementary convention or agreement;"
    •  5. The existing paragraph 3(c) of Article XIV is relettered as paragraph 3(d).

    6. The last sentence of Article XIV, paragraph 7 of the Constitution is amended as follows:

  • " 7. (...) In addition, the Director-General shall certify copies of those conventions, agreements, supplementary conventions or agreements and transmit one copy to each Member Nation of the Organization and to such non-member States or regional economic integration organizations as may become parties to the conventions, agreements, supplementary conventions or agreements."
    •  7. A new paragraph is added after Article XVIII, paragraph 5, which reads as follows:
  • "6. A Member Organization shall not be required to contribute to the budget as specified in paragraph 2 of this Article, but shall pay to the Organization a sum to be determined by the Conference to cover administrative and other expenses arising out of its membership in the Organization. A Member Organization shall not vote on the budget."
    •      General Rules of the Organization
  • 8. Paragraph 1 of Rule XIX of the General Rules of the Organization is amended as follows:
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  • "1. Any nation or regional economic integration organization which desires to become a Member of the Organization and any Member Nation or authority which wishes to request admission to associate membership on behalf of a territory or a group of territories for whose international relations it is responsible shall submit an application to the Director-General. This application shall be accompanied or followed by the formal instrument of acceptance of the Constitution required under Article II, paragraph 2, 3 or 11 of the Constitution. This formal instrument shall reach the Director-General not later than the opening day of the Conference session at which the admission of the applicants is to be considered."
    •  9. Paragraph 4 of Rule XIX of the General Rules of the Organization is amended a 9 follows:
  • "4. The Director-General shall inform the applicant nation or regional economic integration organization of the decision of the Conference. If the application is approved, such notice shall also state the amount of the first contribution."
    •  10. The following Rules are added after Rule XXXIX:
  • "D. MEMBER ORGANIZATIONS
    •      Rule XL

    General

    The provisions of the General Rules of the Organization applicable to Member Nations shall apply mutatis mutandis to Member Organizations, except as may be otherwise provided in the Constitution or in these General Rules.

    Rule XLI

    Competence

  • 1. Any Member Nation of the Organization may request a Member Organization or its Member States to provide information as to which, as between the Member Organization and its Member States, has competence in respect of any specific question. The Member Organization or the Member States concerned shall provide this information on such request.

    • 2. Before any meeting of the Organization the Member Organization or its Member States shall indicate which, as between the Member Organization and its Member States, has competence in respect of any specific question to be considered in the meeting and which, as between the Member Organization and its Member States, shall exercise the right to vote in respect of each particular agenda item.

    3. In cases where an agenda item covers both matters in respect of which competence has been transferred to the Member Organization and matters which lie within the competence of its Member States, both the Member Organization and its Member States may participate in the discussions. In such cases the meeting, in arriving at its decisions, shall take into account only the intervention of the party which has the right to vote.

     Rule XLII

    Arrangements for the Conference

  • 1. The credentials of delegates, alternates, associates and advisers of a Member Organization to sessions of the Conference shall be issued by, or on behalf of, the head of the executive body of the Member Organization concerned.

    • 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.

    3. Member Organizations shall not hold office in the Conference or any subsidiary body of the Conference.

     Rule XLIII
    Arrangements for the Council

    Member Organizations shall not hold office in the Council or any subsidiary body of the Council.

    Rule XLIV

    Quorum and voting arrangements at meetings of the Conference and Council

  • 1. For the purpose of determining a quorum, as specified in paragraph 2(b) of Rule XII, the delegation of a Member Organization "hall be counted to the extent that it is entitled to vote in the meeting in respect of which the quorum is sought.

    • 2. Member Organizations shall not participate in voting for elective places as defined in paragraph 8(a) of Rule XII.

     Rule XLV

    Arrangements regarding committees of restricted membership

    Member Organizations shall not participate in the Programme Committee, the Finance Committee and the Committee on Constitutional and Legal Matters."

  • 11. The existing part "D" of the General Rules of the Organization is relettered as "E" and the existing Rules XL to XLII are renumbered as Rules XLVI to XLVIII.
    •  (Adopted 18 November 1991)

    Cooperation agreement between the African Development Bank (ADB), the African Development Fund (ADF) and the Food and Agriculture Organization of the United Nations (FAO)

    303. The Conference noted with satisfaction that cooperation between FAO, the African Development Bank and the African Development Fund had grown steadily during the 1980s. It noted that the Memorandum of Understanding approved by the Council at its Seventy-eighth Session (November-December 1980) had been renegotiated with a view to bringing it in line with the changes made in agreements with other financing institutions, in particular with respect to cost-sharing arrangements, and also to further strengthen, foster and consolidate the cooperative programme existing between the Bank, the Fund and FAO.

    304. The Conference further noted that the Council, at its Ninety-ninth Session (10-21 June 1991), had considered the proposed Cooperation Agreement with the African Development Bank and the African Development Fund, and had approved it for signature by the Director-General, subject to confirmation by the Conference.

    305. The Conference noted the desire expressed by some regions that similar such agreements be drawn up between their regions and FAO.

    306. The Conference, in accordance with Article XIII, paragraph 1 of the Constitution, confirmed the Cooperation Agreement between the African Development Bank and the African Development Fund and the Food and Agriculture Organization of the United Nations as set out in Appendix H to the Report of the Ninety-ninth Session of the Council.

    307. The Conference expressed the hope that the Agreement would be signed quickly and that full implementation would take place as soon as possible.

    Revision of conference resolution 46/57 and the appendix thereto (Part R. volume II of the basic texts

    308. The Conference recalled that Part R of the Basic Texts of the Organization sets out a number of principles and procedures which should govern Conventions and Agreements concluded under Articles XIV and XV of the Constitution, and Commissions and Committees established under Article VI of the Constitution. It had adopted these principles and procedures in 1957 under Resolution 46/57. The provisions of Part R of the Basic Texts introduced a measure of uniformity into constitutive agreements of Commissions established under Article XIV of the Constitution on the basis that the functioning of those Commissions should be tied very closely to the functioning of the Organization, partly on the assumption that such Commissions would be financed wholly, or in large measure, by the Organization itself.

    309. The Conference noted that a number of developments had taken place, both in the Organization and more generally on the world scene, that called for a review of the provisions of Part R of the Basic Texts with the aim of introducing greater flexibility. Among these was the establishment of commissions in accordance with Article XIV, with independent budgets financed directly by the parties to the agreement outside the framework of the Regular Programme of the Organization. Moreover, other commissions now under consideration and, in particular, regional fishery commissions in light of the changes in the Law of the Sea, should be given a broader range of responsibility and increased authority.

    310. The Conference agreed that it would be opportune and legally desirable to modify Conference Resolution 46/57, particularly with respect to agreements establishing bodies with autonomous budgets. The Conference noted that the matter had acquired a certain urgency in view of the initiative to establish a new Indian Ocean Tuna Commission. Moreover, the Member Nations interested in establishing such commissions had specifically requested that the Secretariat take measures to amend the Conference Resolution in the sense under proposal.

    311. The Conference adopted, accordingly, the following Resolution:

    Resolution 8/91

    REVISION OF CONFERENCE RESOLUTION 46/57 - AMENDMENTS TO THE PRINCIPLES AND PROCEDURES WHICH SHOULD GOVERN CONVENTIONS AND AGREEMENTS CONCLUDED UNDER ARTICLES XIV AND XV OF THE CONSTITUTION AND COMMISSIONS AND COMMITTEES ESTABLISHED UNDER ARTICLE VI OF THE CONSTITUTION (SECTION R OF VOLUME II OF THE BASIC TEXTS)

    THE CONFERENCE,

    Recalling that Part R of the Basic Texts of the Organization sets out a number of principles and procedures which should govern conventions and agreements concluded under Articles XIV and XV of the Constitution and commissions and committees established under Article VI of the Constitution,

    Recalling also that these principles and procedures were adopted by the Conference in 1957 under its Resolution 46/57,

    Doting that a number of developments have taken place both in the Organization and more generally in the world scene, that call for a review of the provisions of Part R of the Basic Texts with the aim of introducing greater flexibility into those provisions,

    Recalling also that, in its Hundredth Session, held in November 1991, the Council agreed that it would be opportune and legally acceptable to modify Conference Resolution 46/57, particularly with respect to agreements establishing bodice which would have autonomous budgets,

    Decides to amend the principles and procedures adopted under its Resolution 46/57 as follows:

    1. Paragraph 8:

    8. Conventions and agreements shall contain, when appropriate, provisions reflecting the following principles:

     

    (a) Amendments to all conventions and agreements concluded under Article XIV of the Constitution shall require Council approval, unless the Council considers it desirable to refer these amendments to the Conference for approval be reported to the Council which shall have the power to disallow them if it finds that such amendments are inconsistent with the objective and purposes of the Organization or the provisions of the Constitution. If the Council considers it desirable, it may refer these amendments to the Conference which shall have the same power. In addition, such amendments shall be subject to prior approval by at least a two-thirds majority of all the parties to the convention or agreement. Amendments to conventions and agreements which do not provide for the establishment of a body shall be submitted to an advisory committee prior to consideration by the Council.

    (b) Amendments are not to become operative before approval by the Council or the Conference. The actual date on which they come into force shall be specified in the text.

    (b) Amendments are operative until disallowed by the Council or the Conference.

     2. Paragraph 28:

    28. The relations between commissions or committees established under Article VI and other international organizations shall be governed by Article XIII of the Constitution and Rule XXIV.4(c) of the General Rules of the Organization, as well as by the rules adopted by the Conference on the matter of relationship with international organizations. These provisions shall likewise govern the relations between commissions and committees established by conventions and agreements under Article XIV of the Constitution and other international organizations, and the convention and agreements shall contain a provision to this effect. All such relations shall be dealt with by the Director-General.

     3. Paragraph 30

    30. Provision shall be made in the relevant texts to the effect that commissions, committees and other bodies established under Article VI and Article XIV of the Constitution, as well as subsidiary bodies, shall transmit their reports and recommendations to the Director-General, those of subsidiary bodies to be transmitted through the parent body. In the case of bodies referred to in paragraph 33(c), provision may also be made in the relevant texts to the effect that recommendations or decisions not having financial, policy or programme implications for the Organization, may be transmitted directly to the Members of the body concerned for their consideration and action.

    The Director-General shall:

    (a) take these reports into account when preparing the Programme of Work and Budget of the Organization;

    (b) bring to the attention of the Conference through the Council any recommendations adopted by these bodies which have policy implications or which affect the programme or finances of the Organization;

    (c) include in his annual statement to the Conference an analysis of the work done by these bodies.

         4. Paragraph 32.(iii)

    32. (iii) the Secretary of each body shall be appointed by the Director-General and shall be administratively responsible to him. In the case of bodies referred to in paragraph 33 (c), the basic texts may specify that the Secretary shall be appointed by the Director-General after consultation with, or with the approval or concurrence of, the Members of the body concerned.

     5. Paragraph 33

    33. Bodies established under Article XIV of the Constitution fall into one of the three following categories:

     

    (a) bodies entirely financed by the Organization;

    (b) bodies that, in addition to being financed by the Organization, may undertake cooperative projects financed by members of the body;

    (c) bodies that, in addition to being financed by the Organization, have autonomous budgets.

    Bearing in mind the obligations to the Organization, the following principles shall be observed and appropriate provisions shall be inserted in the text of conventions and agreements:

    (i) all cooperative projects and autonomous budgets and programmes shall be submitted to the Council or the Conference of the Organization prior to implementation;

    (ii) contributions for cooperative projects and autonomous budgets shall be remitted to the Organization. The Organization shall establish in each case a trust or special fund into which these contributions shall be paid and these funds shall be administered in accordance with the Financial Regulations and Rules of the Organization;

    (iii) any financial regulations adopted by such bodies shall be in conformity consistent with the principles embodied in the Financial Regulations of the Organization and be approved by the Director-General, subject to confirmation by the Council of the Organization reported to the Finance Committee which shall have the power to disallow such financial regulations or amendment if it finds that they are inconsistent with the principles embodied in the Financial Regulations of the Organization;

    (iv) expenses borne by the Organization shall be determined and paid within the limits of the relevant item of the budget of the Organization as approved by the Conference.

     6. Paragraph 35

    35. Conventions and agreements establishing commissions and committees under Article XIV of the Constitution shall provide that the rules of procedure and amendments thereto adopted by such commissions and committees shall be submitted to the Director-General for approval not be inconsistent with the Convention or Agreement establishing the body or with the Constitution. For the adoption of rules of procedure or amendments thereto, the required majority within the commissions and committees shall be uniformly set at two-thirds of the membership of the body.

     (Adopted 26 November 1991)

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