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Constitutional Revision in the Specialized Agencies

Published online by Cambridge University Press:  28 March 2017

Lester H. Phillips
Lester H. Phillips*
Affiliation:
University of Redlands
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Extract

The significant rôle for the specialized agencies contemplated by the Charter of the United Nations is reflected in the constitutions of those agencies. It is the purpose of this paper to analyze, on a comparative basis, one aspect of the constitutional law of intergovernmental agencies related to the United Nations, viz., the flexibility of their constitutions. This study should reveal the degree of adequacy of this ingredient, so essential to the viability of these important international institutions.

Type
Research Article
Information
American Journal of International Law , Volume 62 , Issue 3 , July 1968 , pp. 654 - 678
Copyright
Copyright © American Society of International Law 1968

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References

1 Charter, Arts. 57-59. Cf. Wilfred Jenks, C., “Some Conscitutional Problems of International Organizations,” 22 Brit. Yr. Bk. Int. Law 11 (1945)Google Scholar.

2 Schwelb, Egon, ‘’ The Amending Procedure of Conscitutions of International Organizations,“ 31 ibid. 50–51 (1954).Google Scholar

3 D. W. Bowett, The Law of International Inscitutions 329 (1963).

4 Jenks, loc. cit. 68.

5 Luard, The Evolution of International Organizations 23 (1966).

6 Jenks, loc. cit. 65.

7 Professor Bowett 's label for these agencies is ‘’ Global Organizations of Limited Competence.” He speaks of twelve specialized agencies, expressly limiting I.D.A. as a bank affiliate to something less than a separate agency. Bowett, op. cit. 56, 94. I.D.A. entered into relationship with the TJ.N”. as a specialized agency by agreement effective March 27, 1961.

8 Texts of these documents are printed in various volumes of Yearbook of the United Nations; also in Peaslee, International Governmental Organizations: Conscitutional Documents (2 vols., 1956, and rev. 2nd ed., 1961). The revised edition is not consistent as to the inclusion of amended texts.

9 The Conscitution is “the basic Act of the Union” (Art. 22). The Universal Postal Convention remains as one of the technical Acts of the Union.

10 Among the subjects referred to the working group on the Convention was the question of replacement of the Convention by a conscitution. See note 115 below.

11 At the Montreux Conference, 1965, the task of preparing a suitable draft of a conscitution was assigned to a study group of experts. I.T.U., Eeport on the Activities of the ITU in 1965, p. 35. See also, International Organization, Summer 1966, 650-651. The hope expressed by Dr. Jenks that conscituent instruments would be “disentangled” from technical conventions may eventually be fulfilled. Jenks, loc. cit. 15.

12 McNair, , “The Functions and Differing Legal Character of Treaties,” 11 Brit. Yr. Bk. Int. Law 117 (1930).Google Scholar

13 Everyman's United Nations, 8th ed., pp. 487-545 (1968); also successive editions of the United Nations Yearbook.

14 Unlike other agencies, increases in the number of executive directors in the four financial agencies do not require conscitutional amendments. Similarly, increases in financial quotas can be made without a conscitutional amendment. Currently projected is an amendment of the Articles of Agreement of I.M.I\; see note 26 below.

15 This amendment to Art. 28 was ratified on Nov. 3, 1967, to enter into force twelve months thereafter.

16 This five-fold classification contains several arbitrary placements, due to the multiple content of some amendments and to the fact that some could logically fall under alternative headings.

17 Increases in the nine agencies were adopted in these years: F.A.O. Council: 1947, 1953, 1959, 1961, 1965; I.M.C.O. Council: 1964; I.A.E.A. Board of Governors: 1961; I.C.A.O. Council: 1961; I.L.O. Governing Body: 1953, 1962; I.T.U. Administrative Council: 1959, 1965; UNESCO Executive Board: 1952, 1954, 1956, 1962; W.H.O.

18 F.A.O., Report of 13th Sess. of the Conference, Rome, 1965, p. 82.

19 Dates in parentheses represent the year of approval of the amendment by the respective plenary body, and are not necessarily the year of entry into force. For details of each adoption, see official records of plenary meetings for the year indicated.

20 By Art. 102 of the General Regulations adopted at Vienna July 10, 1964, the new Executive Council would consist of 27 members, an increase of three over the preceding Executive and Liaison Committee. U.P.U., Conscitution and General Regulations, p. 71 (English translation prepared by the British Post Office).

21 Only two agencies included such a provision in their original conscitutions: UNESCO (6 years) and I.A.E.A. (4 years).

22 By Res. C2, Universal Postal Congress, Vienna, 1964, this revision was given immediate effect.

23 An increase from two to three in the number of vice presidents of W.M.O. was adopted (April 28, 1967) by the Fifth World Meteorological Congress.

24 Res. Al-3, adopting Art. 93 bis. I.C.A.O., Proceedings of the First Session of the Assembly, Montreal, 1947, pp. 84-87.

25 None of these three had been ratified at the time of this writing.

26 A new function for I.M.F. is projected by Res. No. 22-8, adopted by the Board of Governors at Bio de Janeiro (October, 1967). The resolution proposes the establishment of a “Facility Based on Special Drawing Rights in the Fund,” and requests the Executive Directors to prepare not later than March 31, 1968, a report proposing amendments to the Articles of Agreement for consideration and approval by the Board of Governors. See article by Joseph Gold in 62 A.J.I.L. 365 (1968).

27 This Instrument of Amendment (No. 1) 1964, to amend Arts. 19 and 35, had not been ratified at the time of this writing.

28 This amendment of Art. IV.C.8(a) has been implemented by Rule 81(2), Rules of Procedure of the General Conference. UNESCO, Manual of the General Conference (1965 ed.) 11, 47.

28 Res. A14-5, 14th Sess. of the Assembly; adopted Sept. 14, 1962, but not ratified at the time of this writing.

29 Ees. A14-5, 14th Sess. of the Assembly; adopted Sept. 14, 1962, but not ratified at the time of this writing.

30 Res. No. 69, I.M.C.O. Assembly, Second Extraordinary Session, September, 1964, adopting amendments to Arts. 17 and 18. These amendments entered into force Oct. 6, 1967. The amendment to Art. 28, by Res. No. 70, Fourth Session of the Assembly, Paris, 1965, regarding the Maritime Safety Committee, will enter into force Nov. 3, 1968.

31 A recent procedural change has been effected in the adoption by the Fifth World Meteorological Congress, Geneva, 1967, of amendments to Arts. 5, 10, and 16 of the W.M.O. Convention. These permit the calling of extraordinary sessions of the Congress, and the taking of decisions of the Executive Committee and of the total membership, by means of correspondence. W.M.O. Convention, Provisional Edition, 1967 (manuscript).

32 The 1967 session of the Congress of W.M.O. (see note 31 above) made substantial revisions affecting eight articles, requiring a number of consequential changes throughout the text of the Convention.

33 This section of Res. 2(Cg. IV) amending Art. 10(a)(2) implemented the change in wording adopted by the W.M.O. Congress in 1959 but which had not entered into force. W.M.O., Abridged Report with Resolutions, 4th Cong., Geneva, 1963, p. 46.

34 Revisions of conscitutions have occasionally changed the number of the amending article. Following are the current article numbers: F.A.O. (Art. 20); I.M.C.O. (Arts. 52-54); I.A.E.A. (Art. 18); I.B.B.D. (Art. 8); I.C.A.O. (Art. 94); I.D.A. (Art. 6 ); I.F.C. (Art. 7 ); I.L.O. (Art. 36); I.M.F. (Art. 17); UNESCO (Art. 13); U.P.TJ. (Arts. 29, 30); W.H.O. (Art. 73); W.M.O. (Art. 28).

35 Art. 6(h).

36 Statute, Art. 18(A).

37 Conscitution, Art. 20(3).

38 Articles of Agreement: I.B.E.D., Art. 8 (a); I.D.A., Art. 9 (a); I.F.C., Art. 7(e); I.M.F., Art. 17(a).

39 Conscitution, Art. 29.

40 I.C.A.O., Proceedings of the Council, 4th Sess., May 25-June 26, 1948, pp. 68-69.

41 Res. A2-5. I.C.A.O., Proceedings of the Second Assembly, Geneva, 1948, pp. 365-366.

42 I.L.O., Minutes of the 120th Sess. of the Governing Body, Nov. 25-28, 1952, pp. 61-65, 117-118; Record of Proceedings, 36th Sess., International Labor Conference, Geneva, 1953, pp. 423-427.

43 W.H.O., Official Records, No. 40: Executive Board, 9th Sess., January 21-February 4, 1952, pp. 18, 76-92.

44 Ibid., No. 143: Resolutions, 18th World Health Assembly, Geneva, 1965, pp. 136-145.

45 Adoption of amendment to Art. 7, May 20, 1965; ibid., No. 144: 18th World Health Assembly, Geneva, 1965, pp. 184-186.

46 Res. EB38.R20; ibid., No. 153: Executive Board, May 23-24, 1966, p. 9.

47 Res. 4(Cg. III ) : The Congress “instructs the Executive Committee under Article 14(h) to keep the Convention under continuing review between meetings of Congress, and … to submit to Congress the text of any proposed amendment to the Convention which may appear to the Executive Committee to be necessary.” W.M.O., No. 88.RC.17: Abridged Report with Resolutions, Third Congress, Geneva, 1959, pp. 60-61.

48 F.A.O. Conscitution, Art. 20(4); I.M.C.O. Convention, Art. 52; I.A.B.A. Statute, Art. 18(A); UNESCO Conscitution, Art. 13(1); W.H.O. Conscitution, Art. 73; W.M.O. Convention, Art. 28(a).

49 Bes. A4-3, “Policy and Programme with Respect to the Amendment of the Convention“; I.C.A.O., Proceedings of the Fourth Assembly, Montreal, 1950, pp. 95-96, 333.

50 Standing Orders of the International Labor Conference, 1963 ed., Art. 46(1).

51 General Regulations, Art. 118. All proposals received at least six months before the Congress are to be published; those received between six and four months will be published only if supported by at least two Administrations; and proposals received less than four months preceding the Congress will be published only if supported by at least eight Administrations. U.P.U., Conscitution and General Regulations, Vienna, July 10, 1964.

52 Res. 4(Cg. III ); W.M.O., No. 89.RC18: Proceedings, Third Congress, Geneva, 1959, pp. 71-72.

53 Rules 104-106, Rules of Procedure of the General Conference, 1965 ed.

54 F.A.O., Report of 9th Sess. of the Conference, Rome, 1957, p. 191; I.M.C.O., Documents A.III/SR.5 and 6, 3rd Sess. of the Assembly, London, 1963; UNESCO, Resolutions, 11th Sess. of the General Conference, Paris, 1960, pp. 192-193; W.H.O., Official Records, No. 55: Seventh World Health Assembly, Borne, 1954, pp. 366-372; W.M.O., Annual Report, 1959, p. 51.

55 I.A.E.A., General Conference, Rules of Procedure, GC(VIII)/INF/60 (1963), Rule 103.

56 I.C.A.O., Minutes of the Plenary Meetings, 15th Sess. of the Assembly, Montreal, 1965, pp. 137-142.

57 I.B.R.D. (Art. 8 (a)), I.D.A. (Art. 9 (a)), I.M.F. (Art. 1 7 (a)) : “Any proposal to introduce modifications in this Agreement … shall be communicated to the Chairman of the Board of Governors who shall bring the proposal before the Board. If the proposed amendment is approved by the Board the Bank [Association, Fund] shall, by circular letter or telegram, ask all members whether they accept the proposed amendment. ’ ‘

58 U.P.U. Conscitution, Art. 30(1); “W.M.O. Convention, Art. 28(b) and (c). 59.F.A.O. Conscitution, Art. 20(1); I.M.C.O. Convention, Art. 52; I.A.E.A. Statute, Art. 1 8 ( C ) ( i ); W.M.O. Convention, Art. 28(b) and (c).

60 I.L.O., Standing Orders of the International Labor Conference, Art. 47(6); U.P.U. Conscitution, Art. 30(2).

61 UNESCO Conscitution, Art. 13(2): “The General Conference shall have power to adopt by a two-thirds majority rules of procedure for carrying out the provisions of this Article.” Other agencies rely upon the general rule-making authority of their plenary bodies. Varying citles are used for these rules, e.g., “General Rules of the Organization” (F.A.O.); “Rules of Procedure” (I.A.E.A.); “Standing Rules of Procedure of the Assembly” (I.C.A.O.); “Standing Orders of the International Labor Conference” (I.L.O.); “Rules of Procedure of the General Conference“ (UNESCO); “General Regulations” (U.P.U.).

62 For an example of the latter, see Arts. 46 and 47 of Standing Orders of the International Labor Conference, 1963 ed.

63 See note 49 above.

64 I.C.A.O., 13th (Extraordinary) Session of the Assembly, Montreal June 19-21, 1961; I.M.C.O., Second Extraordinary Session, London, Sept. 10-15, 1964.

65 F.A.O., Report of the 5th Sess. of the Conference, Washington, D. C, 1949, p. 50.

66 Res. WHA6.57. W.H.O., Official Records No. 48: 6th World Health Assembly, Geneva, 1953, p. 39.

67 F.A.O., Report of 12th Sess. of the Conference, Rome, 1963, p. 81.

68 I.A.E.A., Doe. GC(IX)/311. Report of the General Committee, Sept. 22, 1965.

69 W.M.O., Proceedings, 4th Congress, Geneva, 1963, pp. 177-180.

70 Regarding the usage of these terms, see Schwelb, loc. cit. 55, note 5.

71 Bowett, op. cit. 330-331.

72 Or additionally for UNESCO, proposals which involve fundamental alterations in the aims of the Organization.

73 F.A.0. Conscitution, Art. 20(2); UNESCO Conscitution, Art. 13(1); W.M.O. Convention, Art. 28(b) and (c).

74 I.A.B.A. Statute, Art. 18.C.(ii); I.C.A.O. Convention, Art. 94(a); I.L.O. Conscitution, Art. 36; I.M.C.O. Convention, Art. 52; W.H.O. Conscitution, Art. 73.

75 Articles of Agreement: I.B.R.D., Art. 8(a); I.D.A., Art. 9(a); I.M.F., Art. 17(a)

76 I.F.C. Articles of Agreement, Art. 7(a).

77 “I.B.R.D., Art. 8(b); I.D.A., Art. 9(b); I.F.C, Art. 7(b); I.M.F., Art. 17(b).

78 W.M.O., Annual Report, 1959, pp. 50-51.

79 Ibid. 49. This was a proposal to amend Art. 10(a)(2).

80 Res. 2(Cg. IV). W.M.O., Abridged Report with Resolutions, 4th Cong., Geneva, 1963, p. 46.

81 Res. No. 27, Summary Proceedings, Annual Meeting of Board of Governors, Vienna, 1961, p. 40; and Res. No. 50, ibid., Tokyo, 1964, p. 21.

82 The fourth amendment of I.C.A.O. was ratified in time to make effective an increase in the size of the Council at the 1962 session of the Assembly; in the election of this expanded number all delegations were permitted to participate, whether or not their governments had ratified the amendment.

83 This amendment operated to debar Spain from membership, and achieved its purpose merely by approval in the Assembly, coupled with voluntary withdrawal by Spain; there was therefore no incentive for its early consideration by governments and it must be viewed as an abnormal occurrence.

84 Art. 36: “Amendments to this Conscitution which are adopted by the Conference by a majority of two-thirds of the votes cast by the delegates present shall take effect when ratified or accepted by two-thirds of the Members of the Organization… . “

85 Art. 13: “Proposals for amendments to this Conscitution shall become effective upon receiving the approval of the General Conference by a two-thirds majority; … “

86 See Schwelb, loc. cit. 59, for analysis of the relation of binding effect to provisions for withdrawal from membership.

87 I.M.C.O., A/ES.II/Bes. 69, adopted Sept. 15, 1964; A IV/Res. 70, adopted Sept. 28, 1965.

88 Bowett, op. cit. 319. In a session of UNESCO, the representative of Japan stated his unhappiness at what he characterized as these “departures from international law.” UNESCO, Proceedings, 11-20, 7th Sess., General Conference, Paris, 1952, p. 225.

89 W.M.O., Proceedings, 4th Cong., Geneva, 1963, p. 180.

90 Bowett, op. cit. 332.

91 George A. Codding, Jr., The Universal Postal Union 110 (1964). This tradition appears to be continued in the Conscitution of U.P.U. (Art. 30), which states that amendments are to enter into force when approved by the Congress and “shall be ratified as soon as possible by Member Countries.“

92 UNESCO, Proceedings, 3rd Sess. of the General Conference, Beirut, 1948, p. 469.

93 I.C.A.O., Proceedings of the Fourth Assembly, Montreal, 1950, pp. 96-104.

94 I.C.A.O., Minutes of the Plenary Meetings, 6th Sess. of the Assembly, Montreal, 1952, pp. 27-32.

95 W.H.O., Official Records, No. 28: 3rd World Health Assembly, Geneva, 1950, p. 156.

96 Res. WHA11.25; Hid., No. 87: 11th World Health Assembly, Minneapolis, 1958, pp. 27-28.

97 Res. WHA12.38; ibid., No. 95: 12th World Health Assembly, Geneva, 1959, p. 36.

98 I.L.O., Record of Proceedings, 46th Sess., International Labor Conference, Geneva, 1962, pp. 655-656.

99 Res. A10-36; I.C.A.O., Annual Report of the Council to the Assembly for 1956, p. 49.

100 GC(VII)/Res./143; I.A.E.A., Resolutions and Other Decisions, 7th Sess., General Conference, Vienna, 1963, p. 4.

101 W.M.O., Annual Report, 1959, p. 50.

102 See note 69 above.

103 I.L.O., Record of Proceedings, 32nd Sess., International Labor Conference, Geneva, 1949, p. 405.

104 Res. WHA3.96; W.H.O., Handbook of Resolutions and Decisions, 8th ed., pp. 268-270; W.H.O., Official Records, No. 55: 7th World Health Assembly, Geneva, 1954, pp. 366-372.

105 Ibid.

106 Ibid., No. 71: 9th World Health Assembly, Geneva, 1956, p. 348.

107 GC(V) OR.58; I.A.E.A., General Conference, 5th Regular Sess., Vienna, 1961, p. 12.

108 GC(IX)/311; I.A.E.A., General Conference, 9th Regular Sess., Vienna, 1965.

109 F.A.O., Report of 12th Sess. of the Conference, Borne, 1963, p. 81.

110 I.C.A.O., Minutes of Plenary Meetings, 15th Sess. of the Assembly, Montreal, 1965, p. 142.

111 Res. GC(V)/188/Rev.l (Oct. 6, 1961); I.A.E.A., Documents, General Conference, 5th Regular Sess., Vienna, 1961.

112 Res. A4-3; see note 49 above.

113 “The ad hoc Committee undertook a thorough and detailed analysis of the structure and working methods of the Organization…. They eliminated the ambiguities which resulted from the rather empirical manner in which the various parts of the Organization's machinery developed, and they corrected the faults which experience has brought to light. “ F.A.O., Report of 9th Sess. of the Conference, Rome, 1957, p. 171. The Conference appropriated $20,000 for committee expenses.

114 “ T h e Convention had been examined Article by Article and each time, the group had asked itself whether there were ambiguities or redundancies which could be avoided… . The group had carefully avoided making any change in the basic structure of the Organization or jeopardizing the rights of Members.” W.M.O., Proceedings, 4th Cong., Geneva, 1963, pp. 43-44.

115 Res. 3(Cg. I V ); W.M.O., Annual Report, 1963, p. 3-1.

116 W.M.O., Annual Report, 1965, p. 3-1. At the Fifth World Meteorological Congress, Geneva, 1967, revisions were adopted affecting eight articles of the Convention.

117 Instrument of Amendment, 1953; I.L.O., Record of Proceedings, 36th Sess., International Labor Conference, Geneva, 1953, pp. 245-253.

118 F.A.O., Report of the Special Session of the Conference, Washington, D. G, 1950, pp. 18, 33.

119 Res. No. 30/55; F.A.O., Report of 8th Sess. of the Conference, Eome, 1955, pp. 144, 192-196.

120 Res. No. 55/59; F.A.O., Report of 10th Sess. of the Conference, Borne, 1959, p. 218.

121 Res. A4-3; see note 49 above.

122 Res. WHA8.28; W.H.O., Official Records, No. 63: 8th World Health Assembly, Mexico City, 1955, p. 30.

123 Res. 3(Cg. III ); W.M.O., Abridged Report with Resolutions, 3rd Cong., Geneva, 1959, p. 60.

124 W.M.O., Annual Report, 1960, pp. 45-46.

125 Cf. C. Wilfred Jenks, “Due Process of Law in International Organizations,” 19 Int. Organization 163-176 (1965).

126 See Luard, op. cit. 9-24, for a concise discussion of the process of change in international organizations.