(Considerations by Diego P.
Fernández Arroyo, OAS special
guest)*
4. In an ideal world, the
topics that each CIDIP would
address would be determined by
a permanent body within the
General Secretariat, either
within or outside the
Secretariat for Legal Affairs (SLA).
It could consist of permanent
staff and advisors. A less
ambitious idea would be t o
detail a number of staff from
the Secretariat for Legal Affairs (SLA), who would work
fulltime on this matter. There
need not be many: two or three
people, with sufficient
expertise, and working
exclusively on the business of
CIDIP, would suffice.
Logically, the permanent body
would take suggestions from
the member States and from the
organs or the OAS, narrow down
the agenda with the help of
outside specialists and then
present it to the Permanent
Council for approval. One
might think that this is how
things are presently being
handled, but that is not the
case: the permanent body would
have some authority to take
initiative and would be
executive in nature (as
understood within the
framework of the
Organization).
But with things as they now
are (in other words, so long
as there is no permanent body
and the work is not
centralized in the hands of
specialized OAS staff members,
functioning with some degree
of autonomy), I believe that
the least that can be done is
to create an ad hoc group.
Composed of specialists, such
an ad hoc group would advise
the Secretariat for Legal Affairs (SLA), rapidly focusing the
agendas that are proposed at
each CIDIP for the next
Conference. The guidelines for
determining the agendas would
be the following, as a
minimum:
- The topics for each
conference should be few in
number, no more than 2 or 3 at
a time. Of course, studies on
other topics of interest could
still be prepared. But if the
meeting lasts only a week, it
seems that two should be the
maximum number of topics;
- Once the ad hoc group has
made its decision, a circular
should be sent to the member
states requesting that they
explain their interest in each
topic as promptly as possible,
within 90 days at the latest.
Anyone interested in
participating will meet that
deadline. We cannot, however,
continue to relive the
frustrating experience of the
questionnaires that the
Secretariat for Legal Affairs (SLA)
sends to the member states,
waiting months only to receive
replies from a handful of
them. Academic or scientific
institutions could also be
asked for their opinions.
- The practice of consulting
with the Inter-American
Juridical Committee (CJI)
should continue. However–and
not to diminish the very
considerable contributions
that the CJI has made in the
area of private international
law–it bears repeating that
most of the members of the CJI
are experts in public
international law.
- Ideally at least, the need
for an interest in regulation
of a subject matter ought to
be matched by a commitment to
collaborate in drafting the
pertinent instrument and then
to accept it.
- Although ‘non-duplication of
effort’ in international
codification is a factor to
consider, it does not weigh
equally for all topics nor is
it an absolute;
The main guideline, difficult
in general but feasible to
examine in connection with
each specific topic, is the
following: the importance of a
topic and the need to prepare
a text to regulate it, is
inversely proportional to the
problems caused by the
existence of differing
domestic or usage-based rules
of private international law
and/or by the inadequacy of
those rules to the sector’s
situation. In other words, it
has to be determined whether
the best solution to the
problems that occur with a
given subject is to
standardize the rules of
private international law
among the member states, or to
help harmonize them by means
of a model law. One way or
another, the system would have
to be as flexible as possible,
without ignoring the limits
that the bureaucracy of any
international organization
imposes.
* These ideas have been
further developed in my
contribution to the recently
published Liber Amicorum
Jürgen Samtleben. |