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CONSTITUTIONAL AND LEGAL MATTERS

Report of the Sixty-first Session of the Committee on Constitutional and Legal Matters (CCLM) (Rome. 4-6 October 1993)1

74. The report of the CCLM was introduced by the Chairman of the Committee, Don Samuel Fernández Illánez (Chile), and received the warm appreciation of the Council.

- Agreement for the Establishment of the Indian Ocean Tuna Commission

75. The Council was informed that the CCLM, at its Sixtieth Session in April 1993, had considered a revised text of the draft Agreement for the Establishment of the Indian Ocean Tuna Commission, incorporating certain changes to Article IV on the question of membership of the Commission. The revised text was intended to resolve the outstanding issue arising out of the proposed participation in the Commission of two Member States of the European Economic Communty (EEC) in respect of their overseas territories.

76. The Council noted further, that extensive consultations had been held with the Governments of India, Mauritius, France and the United Kingdom, with a view to reaching an acceptable compromise on the question of participation in the proposed Commission, that those consultations had been fruitful and that a compromise formula had been proposed. The main elements of the compromise formula were set out in paragraph 6 of the Report of the Sixtieth Session of the CCLM,2 and in paragraph 223 of the Report of the Hundred and Third Session of the Council.3

77. The Council noted that, in accordance with the wishes expressed by the Committee at its Fifty-ninth and Sixtieth Sessions, as endorsed by the Council at its Hundred and Second and Hundred and Third sessions, the Secretariat had held informal consultations with other members represented at the technical conference in June 1992 to ensure that there were no other problems with the new text of the draft Agreement, and had for that purpose circulated the text of the draft Agreement to such members for comment. Written comments had been received from eight members of FAO on various aspects of the draft Agreement. Some of the comments were of a drafting nature but other comments were of a more substantive nature and related, inter alia, to the following:

  1. two members had raised the issue of the status of participation in the proposed new Commission of the EEC and its Member States;

  2. one member had raised the issue of the possible duplication of the mandate of the proposed Indian Ocean Tuna Commission and that of the Western Indian Ocean Tuna Commission recently established among coastal states of the Western Indian Ocean;

  3. two members had commented on the question of reservations; and

  4. one member had commented on the issue of coastal states' rights.

78. With respect to the question of the possible duplication of the mandate of the proposed Indian Ocean Tuna Commission and that of the Western Indian Ocean Tuna Commission established

among coastal states of the Western Indian Ocean and opened for signature in 1991, it was recalled that, when this question had been discussed at the technical conference held in June 1992, the conclusion had been reached that the mandates of the two bodies were complementary. At that time, it had been suggested that reference should be made in Article XV of the draft Agreement to the need for cooperation with other intergovernmental organizations and institutions dealing with tuna in the area covered by the draft Agreement. The Council noted that Article XV of the revised draft Agreement for the Establishment of the Indian Ocean Tuna Commission made specific reference to such cooperation and that, consequently, the matter had been dealt with satisfactorily.

79. The Council noted that a number of drafting suggestions submitted by FAO Members had been incorporated in the revised text in: Article 1.1, 1.2(b); Article VI. 1, VI.2, VI.6, VI.8; Article VII.3; Article IX.5, IX.7, IX.8; Article X.l, X.2, X.3; Article XI. 1, XI.2; Article XII.3; Article XIII.8; Article XVIII; Article XIX.3; Article XXIII; and Article XIV(d)(i), XIV(d)(iii). The Council approved those changes.

80. The Council noted that still other amendments had been proposed since the Sixty-first Session of the CCLM in respect of Article XIII.3 on Finances, as well as in Articles IV.4, XX.5 and XXI. 1, and agreed that these amendments be incorporated in the text. Finally, drafting proposals had been made in respect of Article XVI and it was agreed that the alternatives would be reflected in the text.

81. The Council was informed that an agreement was being negotiated between the United Kingdom and Mauritius to be signed before the end of 1993 regarding cooperation in the conservation of fish stocks. The Council noted that these discussions were still proceeding, but that some more time would be required for these discussions to reach fruition and indeed Mauritius had indicated that it was not yet in a position to give formal approval to the draft Agreement.

82. The Council further noted that a decision to approve formally the draft Agreement would also be subject to the condition that the Conference approve the amendments to Part R of the Basic Texts in order to ensure that the proposed Article on reservations would not be incompatible with the Basic Texts. For these reasons, the Council decided not to give formal approval to the draft Agreement at this Session, but to refer the draft Agreement to the Twenty-seventh Conference Session itself for formal approval by that body.

83. The Council, noting the urgent need for the establishment of appropriate machinery for the management of stocks of tuna and tuna-like species in the Indian Ocean, recommended that the draft Agreement for the Establishment of the Indian Ocean Tuna Commission be submitted to the Twenty-seventh Session of the Conference for its consideration and formal approval in the form presented to it in the report of the CCLM, as amended by the Council, subject to a decision by the Conference with respect to the alternative wordings for Article XVI. The text of the draft Agreement is attached as Appendix F to this report.

84. The Council noted that a number of countries had expressed concern over what they perceived to be a "double voice" for the EEC and its Member States inherent in the wording of Article IV of the draft Agreement and that some countries were reluctant to express formal approval on this issue at this time. The Council also took note of the opinion of the EEC and its Member States that no such "double voice" existed and that the question was settled by the general declaration of competence which the EEC submitted when it acceded to FAO. The Council noted, further, that this was an issue that should be explored in its wider perspective in similar situations in the Organization as a whole. It decided, therefore, to refer this matter to the CCLM in order that it carry out a legal analysis of the issues involved and report to the Council at its Hundred and Sixth Session in November 1994. In the meantime, the approach adopted in the present draft Agreement should not be viewed as pre-empting the outcome of that analysis and that report.

- Draft International Agreement on the Flagging of Vessels Fishing on the High Seas4

85. The Council recalled that, at its Hundred and Second Session in November 1992, it had agreed that the issue of fishing vessels reflagging into flags of convenience for the purpose of avoiding compliance with internationally agreed conservation and management measures, while forming part of the issues that would be covered by the proposed Code of Conduct on Responsible Fishing, should be addressed immediately by FAO with a view to finding a solution which could be implemented in the near future. It had also agreed that there was a need for an international agreement on this matter and requested that,' if possible, a draft proposed text of such an agreement be presented to the Twentieth Session of the Committee on Fisheries.

86. The Council also recalled that, in accordance with its request, the Committee on Fisheries at its Twentieth Session (15-19 March 1993) had been presented with a draft Agreement drawn up with the assistance of a small informal Group of Experts in February 1993. The Committee on Fisheries (COFI) had established an open-ended Working Group to carry out a general debate on the issue and review the draft Agreement. The Working Group, while making substantial progress on the review of the draft Agreement, had not been in a position to finalize the text of an agreement. The Committee on Fisheries, in considering the Report of the Working Group, had thus recommended that the draft Agreement be reviewed by a further technical meeting before being submitted to the Conference for approval, in accordance with the provisions of Article XIV of the FAO Constitution.

87. The Council recalled that it had considered the draft Agreement at its Hundred and Third Session in June 1993, and had established an open Technical Committee under Rule XXV. 10 of the General Rules of the Organization to review the draft Agreement and attempt to reach agreement on a final text. The Technical Committee had drafted a revised text of the draft Agreement but a number of provisions had still not received full agreement.

88. The Council recalled that it had requested the Director-General to take the necessary steps to bring the draft Agreement before the Twenty-seventh Session of the Conference in November 1993 for its consideration and adoption under Article XIV of the Constitution and Rule XXI. 1 (GRO). The Council had also entrusted the Secretariat with the task of drawing up a revised Preamble to the draft Agreement, on the basis of the comments made at the Working Group established by the COFI, the suggestions made by the Technical Committee established by the Council and such informal consultations as the Secretariat might hold with governments and organizations concerned.

89. The Council had further decided to refer the Agreement to the CCLM at its Sixty-first Session in October 1993 to review its formal constitutional and legal aspects, including matters relating to the participation of Member Organizations.

90. In the meantime, the Council saw merit in the continuation of informal consultations among all interested potential parties to the Agreement, with a view to reaching understanding on some of these outstanding points for a possible compromise. In this connection, the July Session of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks would provide a useful opportunity for carrying out these informal discussions. It was, however, stressed that decisions regarding the text could only be reached within the formal framework of the Governing Bodies of FAO. In this connection, it was suggested that the product of any informal consultations could be reported to the CCLM, and thus brought to the attention of the Council and Conference for decision.

91. The Council noted that a series of informal consultations had been held with interested governments and organizations on the occasion of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in New York in July 1993, and that informal agreement had been reached on almost all of the provisions remaining in brackets in the Report of the Technical Committee to the Hundred and Third Session of the Council.

92. The Council noted that the CCLM had proposed a number of amendments to the revised text of the Technical Committee based on comments which had been submitted by FAO Members subsequent to the Hundred and Third Session of the Council. The Council also noted that still further comments had been received from members since then. Consequently, it established an open Technical Committee, under the Chairmanship of Mr Samuel Fernandez Illanes (Chile), with the purpose of reaching agreement on a complete text which it could consider later in its session. The Technical Committee met on 2 and 3 November 1993, and reached consensus on a revised text of the draft Agreement.

93. The Report of the Technical Committee and the revised text of the draft Agreement were unanimously approved by the Council. In so doing, the Council noted that the informal discussions which had taken place at the Technical Committee had demonstrated an excellent spirit of compromise and had achieved a delicate balance which would encourage the widest possible support for the proposed draft Agreement. The Council also noted that this draft Agreement would be only the first step in developing other components of a Code of Conduct on Responsible Fishing and would constitute an integral part of that Code. The Council acclaimed the draft Agreement as a momentous achievement and a milestone in the international management of high seas fisheries.

94. The Council requested that, in due course, the CCLM review the provisions of Article XIV of the Constitution concerning the acceptance of agreements concluded thereunder in order to determine whether these provisions should not be enlarged to include other forms of adherence to such agreements. In the meantime, it was clear that acceptance would only take place after all necessary internal procedures had been completed by the accepting State or Member Organization in accordance with their own laws and practices.

95. The Council emphasized that it was of great importance that countries act quickly to give full and active implementation to the new draft Agreement. At the same time, it complimented the FAO on the dynamic role which it had played, and expressed the hope that FAO would draw on the experience gained in the expeditious development of a Code of Conduct on Responsible Fishing, in particular when drafting the general principles of the Code. The Council noted that the Fisheries Department was already working on draft texts for the various chapters of the Code and that consultations with experts and institutions would begin in early 1994.

96. The Council endorsed the text of the draft Agreement as revised by the Technical Committee and decided to transmit it to the Twenty-seventh Session of the FAO Conference for its formal approval under Article XIV of the Constitution, as given in Appendix G to this report.

- Revision of the Statutes of the Advisory Committee on Marine Resources Research5

97. The Council recalled that, pursuant to Article VI, paragraph 2 of the Constitution, the Conference, at its Eleventh Session (November 1961), had authorized the Director-General to establish an Advisory Committee on Marine Resources Research (ACMRR) composed of a number of fisheries experts. The experts were to be selected, after consultation with governments and intergovernmental and other bodies of Member Nations concerned with fisheries research, on the basis of their expert knowledge. The Director-General had been invited to note the need for regional and subject representation in appointing such experts. In conformity with the authorization given to him by the Conference, the Director-General had established the Committee and promulgated its Statutes in January 1963.

98. The Council recalled further that, at its Eighty-second Session in 1982, it had approved a revision of the Statutes in order to bring them into line with the constitutional provisions and decisions adopted by the Conference, as well as to bring up to date the terminology used in the text and that consequential amendments to the Committee's Rules of Procedure had been adopted in 1985.

99. The Council recalled that, at its Hundred and Third Session in June 1993, it had given its support to the establishment of an Advisory Committee on Fisheries Research (ACFR) to replace the existing ACMRR. It had requested the Director-General to submit his proposal as to the structure, composition and functions to the Sixty-first Session of the CCLM.

100. The Council noted that the revised Statutes were designed primarily to amend the scope and the terms of reference of the present ACMRR. The terms of reference of the ACFR would be more comprehensive than those of the ACMRR and would be extended to cover inland fisheries as well as marine resources.

101. The Council also noted that the provisions of Article 11(b) concerning the appointment by the Director-General of two additional members of the Committee on the recommendation of the Intergovernmental Oceanographic Commission of Unesco had been modified in order to introduce flexibility in the procedures envisaged therein.

102. The Council considered that the remaining provisions of the Statutes would be suitable for the new Committee as well and thus remain unchanged.

103. The Council agreed to the Revised Statutes as proposed by the CCLM, subject to the amendment of Article II(a) by the replacement of the words "Member Nations" by the words "FAO Members". Accordingly, the Council gave its approval to the Director-General's proposal to promulgate the Revised Statutes, subject to the foregoing amendment as given in Appendix H to this report.

- Italian tax (6 per mille) on the Contents of Bank Accounts belonging to Staff Members

104. The Council took note of the scheme prepared by the Organization for the recovery, under the Tax Equalization Fund mechanism, of the tax paid by staff members on payments made by the Organization into their bank accounts by way of salaries, emoluments and indemnities. It noted, in particular, that it was the intention of the Organization to limit automatic reimbursement to the tax paid on one month's salary. Reimbursement of tax paid on other emoluments, such as education grant advances, salary advances or terminal emoluments, paid into their bank accounts by the Organization within the three months preceding the imposition of the tax, would be made only on presentation of evidence by the staff member of such payments. It was noted that the estimate of the sums reimbursable to staff members under the scheme was US$65 000, and that it was not the intention of the Organization to require reimbursement of the administrative expenses involved in administering the scheme. It was proposed that the total sums reimbursed to staff members, taking into account the foregoing elements, would be charged to the Italian Government as part of its assessed contribution for 1994, by way of a deduction from its staff assessment credit under the tax equalization fund mechanism.

105. The Council noted, further, that this proposal had been transmitted by the Italian Representation to FAO to the competent Ministries for consideration as it appeared to establish a good basis for resolving the matter.

106. The Council invited the Organization to pursue its discussions with the Italian Government with a view to reaching an amicable resolution of this matter.

- Assessed Contribution of Czechoslovakia6

107. The Council noted that the Czechoslovak Federation had been formally dissolved at midnight 31 December 1992, and as of that time, Czechoslovakia had ceased to exist. The dissolution had given rise to the birth of two new independent states, the Czech Republic and the Slovak Republic. Neither of the individual successor states was recognized under the law dissolving the Federation as being the sole continuation of the former Czechoslovakia, and neither was allowed to use any of the symbols.

108. The Council noted further that, at the United Nations, while the Czech and Slovak Republics were recognized as successor states to the former Czechoslovakia, neither of those Republics had any claim to continue the membership of the former Czechoslovakia in the Organization. Both had applied for membership and had been admitted to the United Nations on 19 January 1993. Moreover, following the UN practice, the Specialized Agencies had not recognized the continuation of membership of either the Czech or the Slovak Republics.

109. The Council recalled that, under the FAO Constitution, applicant states, including UN members, must submit their formal applications to the biennal Conference, and thus could not be admitted to membership until November 1993 at the earliest. The Czech and Slovak Republics had formally applied for membership of FAO on 5 March and 12 February 1993, respectively.

110. The Council noted that the assessed contribution of former Czechoslovakia for the 1992-93 biennium stood at a figure of US$2 439 206 a year, and that it had paid its contribution for the year 1992.

111. The Council recalled that there had been only one precedent of dissolution of an FAO Member Nation. On 31 December 1963, the Federation of Rhodesia and Nyasaland, at the time associate member of FAO, had ceased to exist. On this occasion, the three successor territories (Malawi, Zambia and Southern Rhodesia) had agreed to pay between themselves the total contribution, due from the former Federation of Rhodesia and Nyasaland, as a voluntary contribution to the FAO budget thus implying that the Former Federation of Rhodesia and Nyasaland was under no legal obligation to contribute to the 1964-65 budget. This position had been confirmed implicitly by the Governing Bodies in acccepting the voluntary contribution.

112. The Council noted that, at the request of the Finance Committee, the CCLM had considered the following questions:

  1. Was Czechoslovakia at the time of its demise under a legal obligation to pay the 1993 contribution to FAO?

  2. If the answer to the first question was in the affirmative, were the Czech Republic and the Slovak Republic, as legal successors of Czechoslovakia, liable to pay that contribution, or if not, which other entity would be so liable?

  3. Could the circumstances in which Czechoslovakia ceased to be a member of FAO be equated or assimilated in any way to a withdrawal of a Member Nation under Article XIX of the Constitution?

  4. If the answer to the third question was negative, was the Organization under any obligation to refund to the successors of the former Czechoslovakia any residual balance of the moneys credited to the former Czechoslovakia in the Working Capital Fund under Financial Regulation 6.6(b)?

  5. What changes, if any, to the Basic Texts would the CCLM suggest to deal with such situations in the future?

113. The Council recognized that the situation at hand was a new one which had not been foreseen in the Basic Texts of the Organization and, therefore, the particular circumstances of the position of the former Czechoslovakia and the Czech Republic and the Slovak Republic would have to be examined on an ad hoc basis. Similarly, if other analogous cases were to arise in the future, each case should be judged according to its merits. Thus, the conclusions reached in the case at hand would not constitute a precedent in respect of future cases.

114. In respect of question (a) above, the Council noted that there was a juridical void because there were no specific provisions in the Basic Texts covering this hypothesis and, moreover, the only analogous case which had arisen in FAO was one in which the successor States had made voluntary contributions. The Council, bearing in mind the relevant provisions of the Basic Texts, agreed with the conclusions of the CCLM that, at the time of its demise on 31st December 1992, Czechoslovakia was not under a legal obligation to pay the 1993 contribution to FAO. In view of the above, the Council decided to recommend to the Conference at its Twenty-seventh Session that the amount of the 1993 contribution should be written off.

115. With respect to question (b) above, the Council, bearing in mind that the answer to question (a) was negative and that, as a matter of equity, the Czech and Slovak Republics had not been allowed to enjoy the benefits of membership during 1993, concluded that the Czech Republic and the Slovak Republic, as legal successors of Czechoslovakia, were not liable to pay its contribution for 1993 and that, moreover, no other entity would be so liable.

116. In reply to question (c) above, the Council agreed with the CCLM that the circumstances in which Czechoslovakia had ceased to be a Member of FAO could not be equated or assimilated in any way to a withdrawal of a Member Nation under Article XIX of the Constitution.

117. With respect to question (d) above, the Council agreed that, because the circumstances in which Czechoslovakia had ceased to be a Member of FAO could not be equated or assimilated in any way to a withdrawal of a Member Nation under Article XIX of the Constitution, there was no clear and explicit basis under the Constitution or the Financial Regulations of the Organization for the Organization to refund to the successors of the former Czechoslovakia any residual balance of the moneys credited to the former Czechoslovakia in the Working Capital Fund under Financial Regulation 6.6(b). At the same time, the Council recognized that, while the wording of Financial Regulation 6.6(b) was restricted to cases of withdrawal, the Financial Regulations could be interpreted as implying that advances to the Working Capital Fund should, in principle, be returned to Member Nations on ceasing to be a member of the Organization for whatever reason.

118. The Council noted, however, that a new Member Nation shall be assessed a contribution to the Working Capital Fund in an amount to be determined by the Conference, in accordance with Financial Regulation 6.2(H). The Council noted further that, unless the Conference decided otherwise, the amount of a new member's assessment for the Working Capital Fund shall be considered as an increase in the level of the Working Capital Fund. The Conference would therefore need to be seized of this whole question. In view of the above, the Council recommended that, once the Czech Republic and the Slovak Republic were admitted as Member Nations, the Conference should decide to credit the residual balance to the Czech Republic and the Slovak Republic as the successor States to the former Czechoslovakia, in proportion to their assessed contributions, first in payment of their advances due to the Working Capital Fund, and secondly as partial payment of their assessed contributions for the last quarter of 1993.

119. Finally, in response to question (e) above, the Council agreed with the recommendation of the CCLM that no changes to the Basic Texts would be required for the moment. However, the Secretariat should consult other organizations of the United Nations system in order to ascertain how they were dealing with the problem, and report thereon, in due course, to the CCLM.

Invitations to Non-Member Nations to attend FAO Sessions7

120. In accordance with paragraph B-l of the "Statement of Principles relating to the Granting of Observer Status to Nations",8 the Council considered the request made by the Russian Federation and the Ukraine to attend as observers the Hundred and Fourth and Hundred and Fifth Sessions of the Council, and approved their participation.

121. In accordance with paragraph B-2 of the aforementioned Statement of Principles, the Council agreed to the Director-General's proposal to invite the Russian Federation to attend as an observer the Second Session of the Working Party on Stocking (Thonon-les-Bains, France, 15-19 November 1993) (FI-788) and to invite Ukraine to attend as an observer the following FAO Sessions:

Twenty-fourth Session of the Indo-Pacific Fishery Commission (IPFC) and the Seventh Session of the IPFC Standing Committee on Resource Research and Development and Related Symposium, Bangkok, Thailand, 23 November - 4 December 1993 (FI-704 and FI-771).

Twenty-seventh Session of the Committee on Commodity Problems Intergovernmental Group on Hard Fibres and the Eighth Session of the Sub-Group of Sisal and Henequen Producing Countries, Rome, 29 November - 3 December 1993 (ESC-720 and ESC-731).

Twenty-ninth Session of the Intergovernmental Group on Jute, Kenaf and Allied Fibres, Rome, 6-8 December 1993 (ESC-721).

Second Session of the Codex Committee on Food Import and Export Inspection and Certification Systems, Canberra, Australia, 29 November - 3 December 1993 (CX-733).

122. The Council was also informed that since its Hundred and Third Session, the Director-General, on being so requested, had extended invitations to the following Non-Member Nations to attend as observers the Sessions listed below:

Moldova

Twenty-eighth Session of the European Commission on Agriculture, Valletta, Malta, 27 September - 1 October 1993 (REUR-701).

Russian Federation

Fourth Session of the Committee on Fisheries Sub-Committee on Fish Trade, Rome, 5-8 October 1993 (FI-709).

Twenty-eighth Session of the European Commission on Agriculture, Valletta, Malta, 27 September - 1 October 1993 (REUR-701).

Ukraine

Twenty-eighth Session of the European Commission on Agriculture, Valletta, Malta, 27 September - 1 October 1993 (REUR-701).

Invitations to International Non-Governmental Organizations which do not have Status with FAO9

123. The Council was informed of the names of those international non-governmental organizations not having formal relations with FAO which had been invited to technical meetings during the 1992-93 biennium.

Applications for Membership in the Organization10

124. The Council was informed that, since its Hundred and Third Session (June 1993) the Director-General had received two applications for membership in the Organization, one from Armenia, and one from the Kyrgyz Republic. Consequently, these two additional applications would also be considered by the Conference at its Twenty-seventh Session opening on 6 November 1993.

1 CL 104/3; CL 104/3-Sup.l; CL 104/3-Sup.2; CL 104/3-Sup.3; CL 104/3-Sup.4-Rev.l; CL 104/PV/4; CL 104/PV/7.

2 CL 103/5.

3 CL 103/REP.

4 CL 104/3; CL 104/3-Sup.1; CL 104/3-Sup.2 CL 104/3-Sup.3 CL 104/3-Sup.4-Rev.1; C 93/26; CL 104/PV/5; CL 104/PV/7.

5 CL 104/3; CL 104/PV/5; CL 104/PV/7.

6 CL 104/3; CL 104/PV/5; CL 104/PV/7.

7 CL 104/INF/8; CL 104/PV/1; CL 104/PV/6.

8 See FAO Basic Texts, Volume II, Section L (Appendix).

9 CL 104/INF/5;CL 104/PV/5;CL 104/PV/7.

10 C 93/19;CL 104/PV/l;CL 104/PV/6.

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