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ISSUES ARISING OUT OF THE PROPOSAL OF THE UNITED STATES GOVERNMENT TO CREATE A SUBSIDIARY ORGAN WITHIN CIDI TO REPLACE THE CURRENT APPARATUS FOR ADMINISTERING CIDI PROGRAMS AND PROJECTS
Prepared by the Department of Legal Services
I. INTRODUCTION AND SUMMARY OF CONCLUSIONS
At the February 9, 1999 Meeting of the Special Joint Working Group ("GETC"), several delegations requested a legal opinion on the proposal of the United States Delegation entitled "Strengthening of Technical Cooperation" ("the Proposal")[1]. That proposal recommends the establishment of the OAS Development Agency ("OASDA") as a subsidiary organ within Inter-American Council for Integral Development ("CIDI") for administering CIDI's programs and projects. Specifically, the delegations asked whether the creation of the OASDA as described in the Proposal is permissible under the Charter.
It is our opinion that in principle, the creation of the OASDA, as a subsidiary agency of CIDI to administer CIDI programs and projects is permissible under the Charter. Nonetheless, the proposal, as currently conceived, requires some modification so as not to exceed the legal parameters of the current Charter. Our specific observations, which are analyzed in greater depth in Part III of this opinion, are summarized below.
First, the authority of the General Assembly and CIDI to create OASDA as a subsidiary organ to assist CIDI in the administration of CIDI projects is contemplated in Articles 53, 54, 73, 77, and 93 of the Charter. OASDA must, however, be truly subordinate to CIDI. That is: it must be technically responsible to CIDI; its budget at the program level must be approved by CIDI (and subsequently the General Assembly); and it must conduct its activities within the Strategic Plan and other policy guidelines established by CIDI.
Second, the Charter does not contemplate giving a monopoly to any one organ over all technical assistance administered by the Organization. Although Article 98 of the Charter entrusts the Secretariat for Integral Development ("SEDI") with "execution, and if appropriate, coordination" of CIDI approved projects, Article 95(c) of the Charter recognizes CIDI's authority to assign authority for execution of projects to the other areas of the General Secretariat and to the Specialized Organizations as the case may be. Moreover, the Specialized Organizations of the Organization have authority for the administration of technical cooperation projects within their respective spheres of competence under the corresponding inter-American treaties. Thus, although OASDA, with SEDI acting as its Secretariat, may be the primary executing organ of CIDI projects within the Organization, its authority over the administration of OAS technical cooperation projects cannot be exclusive.
Third, the proposal to create a Management Board of seven representatives selected by all the Member States to direct OASDA is permissible under Article 77 of the Charter. That Article Charter provides implicitly for the creation of subsidiary organs on which less than all the member states are represented, as long as the criteria of "rotation and equitable and suitable geographic representation" are observed, "insofar as possible," in the selection of the membership. Moreover, the creation of organs in accordance with those criteria is not unprecedented. The first CEPCIECC (1970)[2] had only eleven members. The twelve-member Executive Committee of the Inter-American Institute for Cooperation on Agriculture ("IICA"), the eleven member Permanent Executive Committee of the Inter-American Telecommunication Commission ("COM/CITEL"), and the seven-member Executive Committee of the Inter-American Commission on Women ("CIM") are other examples of significant subsidiary organs within organs of the Organization which function successfully in accordance with those criteria and without the membership of all the OAS Member States.
Fourth, the transfer of the project oversight, evaluation, and administration functions of the Permanent Executive Committee of the Inter-American Council for Integral Development ("CEPCIDI") to OASDA does not offend the Charter. CEPCIDI is no more than another subsidiary organ of CIDI, and it can be modified or even abolished by the General Assembly and CIDI under Articles 54, 77, and 93 of the Charter. Moreover, as long as CIDI's budget at the program level is duly approved by CIDI and the General Assembly, the General Assembly and CIDI may transfer the project approval function to OASDA's seven-member Management Board. Decisions regarding the allocation of voluntary and specific fund resources to specific projects within CIDI/General Assembly approved programs need not be characterized as "budgetary decisions" within the meaning of Article 55 of the Charter and therefore do not require the approval of two thirds of the Member States.
Fifth, as required under Article 98, the Executive Secretariat for Integral Development ("SEDI") must remain principally (but not exclusively) responsible for the execution, and, where applicable, the coordination of CIDI approved projects administered by OASDA. For practical purposes, that means that SEDI should serve as OASDA's Secretariat and the Executive Secretary of SEDI should be assigned the functions of the OASDA Administrator and Chief Executive. To avoid both undue confusion and the risk of giving the mistaken impression that the assignment of CIDI project execution and coordination functions to OASDA violates Article 98, we suggest that SEDI maintain its current name, and that the title of the Executive Secretary for Integral Development who will be assigned the functions of "administrator and chief executive officer" of OASDA under the Proposal not be significantly changed[3].
Sixth, because the functions of the Executive Secretary for Integral Development (the "Executive Secretary") are undefined in the Charter, the "enhancement" of that position by assigning the additional functions of OASDA Administrator does not exceed the Charter's parameters. Nonetheless, any "upgrading" of the position must respect the hierarchy of executive authority in Chapter XVI of the Charter. Under that hierarchy, the Secretary General and Assistant Secretary General, are the two highest ranking executive officers of the Organization, as reflected by the fact that they are the only executive officers elected by the supreme organ of the Organization, the General Assembly, Thus, the Executive Secretary for Integral Development may not be upgraded to a level equal to or superior to those two officials.
Seventh, for as long SEDI remains part of the General Secretariat, it cannot entirely bypass the administrative authority of the Secretary General under articles 109 and 113 of the Charter. Nonetheless, the General Assembly, pursuant to its authority under Article 54(g) of the Charter,[4] may amend the general standards so as to permit the application of separate budgetary, administrative, and personnel rules for SEDI and its staff, provided final responsibility for implementing and enforcing those rules remains with the Secretary General. Under Article 109, the Secretary General ultimately is responsible to the General Assembly for the "proper fulfillment of the obligations and functions of the General Secretariat," and in adopting rules and procedures for OASDA which will be administered by SEDI, the political bodies must take care not to erode the authority he needs to carry out the duties that responsibility implies.
Eighth, the Proposal assumes that SEDI will remain part of the General Secretariat, but in remaining as part of the General Secretariat, it may not be able to achieve the degree of administrative autonomy proposed. Nonetheless, the Charter does not prohibit the General Assembly (pursuant to its authority under Article 54(a)) from dissolving SEDI as a unit of the General Secretariat and re-establishing it as an independent entity to serve as the OASDA Secretariat. The Charter mentions SEDI only in the Chapter on CIDI and does not expressly designate it as part of the General Secretariat. Separation of SEDI from the General Secretariat would guaranty almost total autonomy from the direction of the Secretary General, as is the case of those Specialized Organizations whose secretariats are not part of the General Secretariat (i.e., IICA, PAHO, Inter-American Human Rights Court). Nonetheless, the severing of SEDI from the General Secretariat would make it difficult for OASDA to conduct its business because, at least during its formative years, OASDA will have to rely on the privileges and immunities agreements of the General Secretariat until it secures the recognition of its own legal personality and privileges and immunities by agreement or such other means as may be appropriate under the applicable laws of each member state.
Ninth, in the event the Member States decide to go forward with the proposal to create OASDA, we would recommend that the enabling legislation creating that organ adopt the format used by the General Assembly in recent years for creating important new organs of the Organization. Suggestions for that format are set out in the closing remarks of this opinion.
In the remainder of this opinion, we discuss in greater depth the factual and legal considerations upon which it is based. Part II summarizes the basic elements of the Proposal, as we understand it. Part III analyzes in detail ten specific questions relating to the legal feasibility of the Proposal. For the reader's convenience, we have attached an appendix setting out the most relevant Sections of the OAS Charter.
II. THE ELEMENTS OF THE PROPOSAL
The basic elements of the Proposal, as we understand them, are as follows:
A. Status within the Structure of the OAS
OASDA is to be a subsidiary organ or agency within CIDI created pursuant to Articles 77 and 93 of the Charter. As such, it would be one of the "subsidiary organs, agencies and other entities" not specifically listed in Article 53 of the Charter.
B. Scope of Authority
OASDA shall "be authorized to administer all activities of the OAS relating to technical cooperation and development programs encompassed in the CIDI Strategic Plan, including training, scholarships and fellowships."[5] The Agency shall also be authorized to enter into financing and cooperative relations with member states, permanent observers, and other entities and persons to obtain resources to strengthen technical cooperation and development programs.
C. Structure
The proposed organic structure consists of a Management Board and the OASDA Secretariat:
1. The Management Board
The Management Board consists of seven members elected by CEPCIDI (or CIDI) for a fixed three year term. Members will be selected based on the principle of periodic rotation and equitable distribution of membership. Members may be re-elected.
2. The OASDA Secretariat
The Secretariat shall consist of two elements: The Administrator and the Secretariat Staff. The proposal suggests that the Secretariat shall remain part of the General Secretariat, but will not be subject to the same rules and regulations which apply throughout the rest of the General Secretariat.
a. The Administrator: The Executive Secretary for Integral Development shall be the OASDA Administrator. Because the Administrator is the Executive Secretary for Integral Development, he will appointed by the Secretary General, upon CIDI's approval, as provided in Article 117 of the Charter. The Management Board will be consulted prior to the appointment. The Administrator will serve for a four year term which may be renewed once. The Administrator's salary will be established by the Management Board, with the concurrence of the Secretary General, subject to the approval of CIDI in its budget.
b. The Staff: The Staff will be the Executive Secretariat for Integral Development and the current staff of the Offices of the General Secretariat in the Member States.
D. Functions
1. Management Board: Provides operational guidance; approves projects recommended by CENPES; oversees and evaluates program and project implementation; develops and issues policies, criteria, and timetables for program evaluation and reporting; recommends to CEPCIDI program-budget guidelines; issues operational policy guidelines for OASDA activities; develops and recommends to CIDI criteria for determining needs and priorities in allocating technical cooperation resources by program and for determining the size, location, and functioning of field offices; develops and recommends to CIDI a comprehensive fund-raising strategy for all OAS technical cooperation and development programs; Reports regularly to CEPCIDI and biannually to CIDI; establishes special accounts and funds as necessary; proposes for adoption by CEPCIDI and the Permanent Council its own personnel, management, accounting, budget, and operations rules and procedures[6]; assumes responsibility from other areas of General Secretariat for direct management of FEMCIDI, fellowships, and national offices.
2. Secretariat (SEDI): Under the direction of the Executive Secretary for Integral Development, who serves as the "Administrator"), administers budget, financing, programs, project design, technical support, evaluation, reporting, operations, cooperative arrangements and relations with other international, national and private development organizations.
E. Funding of OASDA
1. OASDA will manage FEMCIDI and other special funds it collects and creates.
2. Fellowships and training programs will be financed by the Regular Fund until alternative sources of funding are identified and secured in accordance with the transitory provisions described below.
F. Transitory Provisions
1. Within sixty days of the adoption of the Resolution creating OASDA, the Secretary General must present to the Management Board, CEPCIDI, and the Permanent Council a Work Plan and recommendations for implementing the Resolution, including provisions for sharing of services and resources with the OAS General Secretariat and for the transfer of personnel, resources, and projects to OASDA.
2. Within six months of the approval of the resolution, the OASDA Administrator will submit to the Management Board, CEPCIDI, and the Permanent Council proposed personnel, budgetary, operations and management rules for adoption, and those political bodies shall take action on those proposed rules within the sixty-day period following their receipt. Until such rules are implemented, the applicable General Secretariat rules and procedures shall apply.
3. The Offices of the General Secretariat in the Member States ("National Offices") which cannot be integrated into the main-stream activities of OASDA and for which the Secretary General cannot find alternative external financing shall be closed by December 31, 1999.
4. The Regular Fund shall support OASDA Fellowships in an amount not to exceed the amount in the entire approved Regular-Fund budget for OAS fellowships and training. Nonetheless, the amount expended from the Regular Fund shall be reduced each year by the amount of external funds obtained by OASDA for fellowships and training programs for the same year.
III. ANALYSIS OF LEGAL ISSUES
The proposal to establish OASDA raises, among others, the following questions:
1. Is the establishment of OASDA as a Subsidiary Organ of CIDI within the authority of the General Assembly under the present Charter?
2. Does OASDA have the basic characteristics of a "Subsidiary Organ" within the meaning of that term under the Charter?
3. Does the Charter allow the General Assembly to grant OASDA responsibility for the administration of "all" CIDI approved technical cooperation projects?
4. Does a seven-member Management Board comport with the requirements of Articles 10 and 93 of the Charter?
5. May the Project Approval Function and other functions currently performed by the CEPCIDI be transferred to OASDA without Charter Reform?
6. Would the establishment of OASDA usurp the functions of SEDI assigned under Article 98 of the Charter?
7. Does appointing the Executive Secretary for Integral Development as "Administrator" of OASDA undermine the position of the Executive Secretary for Integral Development under the Charter?
8. Will the "Upgrading and Transformation" of the Post of Executive Secretary for Integral Development Undermine the Authority of the Secretary General Under the Charter?
9. Can SEDI and the Executive Secretary for Integral Development remain as part of the General Secretariat and enjoy the full range of autonomy from the supervision and direction of the Secretary General without infringing upon the Secretary General's authority under Chapter XVI of the Charter?
10. Is Establishing SEDI as a Secretariat outside the General Secretariat a viable option for achieving greater administrative autonomy?
The analysis of each of these questions follows below:
A. Is the establishment of OASDA as a Subsidiary Organ of CIDI within the authority of the General Assembly under the present Charter?
The Charter recognizes the authority of the Organization to create organs in addition to those specifically named in the Charter. Article 53, in pertinent part states:
There may be established, in addition to those provided for in the Charter and in accordance with the provisions thereof, such subsidiary organs, agencies, and other entities as are considered necessary.
The provision in the Charter for establishing subsidiary organs, agencies, or entities of CEPCIDI is Article 93. In pertinent part, it states:
In keeping with the provisions of the Charter, the Inter-American Council for Integral Development may establish the subsidiary bodies and the agencies that it considers advisable for the better performance of its duties.
The relevant Charter provisions referred to in Article 93 for the establishment of "subsidiary bodies and agencies" by the Councils of the Organization are set out in Articles 54, 73 and 77. Article 77 states:
With prior approval of the General Assembly, the Councils may establish the subsidiary organs and the agencies that they consider advisable for the better performance of their duties. When the General Assembly is not in session, the aforesaid organs or agencies may be established provisionally by the corresponding Council. In constituting the membership of those bodies, the Councils, insofar as possible, shall follow the criteria of rotation and equitable geographic representation.
Article 73 also authorizes the Councils to recommend to the General Assembly "studies and proposals . . . on the creation, modification, or elimination of specialized organizations and other inter-American agencies." Finally, Article 54 designates the General Assembly as the "supreme organ" of the Organization and assigns to it the power "to determine the structure and functions of its organs . . . . in accordance with the provisions of the Charter and of other inter-American treaties." (Emphasis added).
The foregoing Charter provisions support the conclusion that the creation of OASDA as a subsidiary organ by the General Assembly is well within the legal competence of the General Assembly and does not require Charter reform[7]. Because, however, the General Assembly can only exercise its powers "in accordance with the provisions of the Charter," it must take care in structuring OASDA so as not to usurp functions expressly delegated to other Organs of the Organization by the Charter. To do otherwise would offend the balance of authority among the organs of the Organization agreed upon by the Member States in approving the Charter's express provisions. Most of the remaining issues addressed in this legal opinion relate to question of whether the OASDA, as described in the Proposal, offends that balance or otherwise violates those provisions.
B. Does OASDA have the basic characteristics of a "Subsidiary Organ" within the meaning of that term under the Charter?
The proposal characterizes OASDA as a "subsidiary organ" or "subsidiary body" of CIDI. Some delegations may question whether the legal "label" given the new organ truly reflects its character or whether it is really something else and simply given that legal label to facilitate its creation without Charter reform. Our conclusion is that the characterization of OASDA as a subsidiary organ of CIDI is appropriate.
The description of the structure and functions of OASDA in the Proposal support the conclusion that the agency, as proposed, satisfies the requirements of a subsidiary agency. A subsidiary agency, is by definition, an agency subordinate to or secondary to a primary agency[8]. Article 93 refers to subsidiary organs within CIDI as those established by CIDI "for the better performance of its duties." Thus the subsidiary bodies within CIDI are those organs which furnish support and are secondary to CIDI for the better performance of its duties.
CIDI is a ministerial-level organ, and as one of the Councils expressly established in the Charter, it is a primary Organ of the Organization. Pursuant to its authority under Article 93, CIDI has already established, with the approval of the General Assembly, subsidiary organs "for the better performance of its duties. They include the Permanent Executive Committee of the Inter-American Council for Integral Development ("CEPCIDI"), the Nonpermanent Specialized Committees ("CENPES"), certain Special Committees, and "other subsidiary bodies and agencies" to assist it in performing its responsibilities under the Charter[9].
The Proposal specifically describes OASDA as a subsidiary body within CIDI[10]. The Proposal goes on to state that OASDA will be responsible to CEPCIDI and the ministerial meetings of CIDI for the administration of CIDI's programs and projects and to provide advice to those meetings on the adoption of technical assistance policies, guidelines, and general procedures. As was the case in establishing CEPCIDI, the CENPES, and the other subsidiary organs of CIDI, OASDA's purpose is to perform specific tasks for the meetings of Ministers that they are unable to do; not to usurp their authority and power. The quasi-political and the administrative functions that OASDA will assume are not those of the CIDI ministerial meetings. Rather they include some of the functions of CEPCIDI, another subsidiary organ. CIDI's ministerial-level meetings will retain their authority over CIDI's technical cooperation budget before sending it on to the General Assembly for approval and will still approve the Organization's general technical assistance policies and procedures and the Strategic Plan recommended for the General Assembly's adoption. Moreover, OASDA will report directly on its activities to CEPCIDI on a regular periodic basis. Thus, the decision to characterize and label OASDA a "subsidiary organ" conforms with the meaning of that term as used in the Charter.
C. Does the Charter allow the General Assembly to grant OASDA responsibility for the administration of "all" CIDI approved technical cooperation projects?
The Proposal, as presently drafted would confer upon OASDA authority "to administer all activities of the OAS relating to technical cooperation and development programs encompassed in the CIDI Strategic Plan." Whether that grant of authority extends to "all technical cooperation activities" or is restricted only to those technical cooperation activities "encompassed in the CIDI Strategic Plan" is unclear from the text of the provision. Under either interpretation, however, the grant of authority is excessive under the Charter.
Article 98 of the Charter suggests that the Member States intended SEDI to have responsibility for the "execution and, if appropriate, the coordination" of CIDI approved projects. As explained in greater detail later in this opinion, the Proposal does not violate Article 98 because it incorporates SEDI and its Executive Secretary into OASDA as its Secretariat and Administrator, respectively. Nonetheless, even SEDI does not have exclusive authority for the execution of all OAS technical cooperation projects or all CIDI approved projects.
Although it is clear from Article 98 that the Member States intended for SEDI to be the primary organ responsible for execution and administrative coordination of projects, Article 95(c) of the Charter strongly suggests that they also intended for CIDI to assign executory and coordinating authority to other organs, as the needs of each case might dictate. In that regard, Article 95(c) states:
In order to achieve its various goals, especially in the specific area of technical cooperation, the Inter-American Council for Integral Development shall . . . assign responsibility for the execution of development programs and projects to the subsidiary bodies and relevant organizations on the basis of the priorities identified by the Member States.
If the draftsmen of the Charter had intended for SEDI to execute all CIDI approved technical cooperation projects, there would have been no need to include Article 95(c) in the Charter. Indeed, the language of that Article is entirely inconsistent with that intent.
Similarly, Article 111 of the Charter carves out a role for the General Secretariat, independent of SEDI, in the technical cooperation area. It states:
The General Secretariat shall promote economic, social, juridical, educational, scientific, and cultural relations among all the Member States of the Organization, with special emphasis on cooperation for the elimination of extreme poverty, in keeping with the actions and policies decided upon by the General Assembly and with the pertinent decisions of the Councils.
Moreover, the inter-American treaties under which the Specialized Organizations are constituted under Chapter XVIII of the Charter provide those agencies with specific areas of competence in the area of technical cooperation[11]. In exercising its authority to create new organs and define their structure under Article 54(a) of the Charter, the General Assembly is bound to respect the provisions "of other inter-American treaties."
Thus, it would not be appropriate to vest OASDA with the exclusive authority for administering all OAS technical cooperation projects or even all CIDI approved projects "encompassed within the strategic plan. Although the OASDA, with SEDI as its Secretariat, may certainly be designated the primary organ for the execution and administrative coordination of CIDI approved projects, Article 95(c) requires modification of the Proposal so as to allow CIDI to assign executing and coordinating responsibility for certain projects to the Specialized Organizations in accordance with their respective sphere's of competence under the corresponding inter-American treaties, Charter provisions, and organic statutes, and to other entities of the General Secretariat in accordance with Article 111 of the Charter.
D. Does a seven-member Management Board comport with the requirements of Articles 10 and 93 of the Charter?
OASDA would have a management board of seven members elected for three year terms. Several delegations have asked whether this is permitted under the principle of "equality of states" set out in Article 10 of the Charter[12], and the first paragraph of Article 93, which states that each member state shall have one vote in the CIDI ministerial meetings[13].
The creation of seven-member Board would not be problematic under the Charter. The reasons are several.
First, Article 77 of the Charter, which specifically covers the question of subsidiary organs and their composition, strongly implies that those bodies may be constituted with a representation of less than all the member states. In pertinent part, that Article states.
In constituting the membership of these bodies, the Councils, insofar as possible, shall follow the criteria of rotation and equitable geographic representation.
Certainly, if it had been the intent of the draftsmen of the Member States to require all subsidiary organs of the Councils to include representatives from all the member states as members, the inclusion of this provision in Article 77 would not have been necessary. Moreover, the inclusion of that language would not have made any sense at all. That language suggests that the draftsmen of the Charter anticipated that the Member States might wish to create subsidiary bodies with less than full representation. For that reason, they set out in Article 77 the criteria selecting the membership of such organs.
Second, Article 93, which states that CIDI "is composed of one principal representative of ministerial or equivalent rank, for each Member State" applies only to the CIDI ministerial meetings. Article 93 does not extend that principle to the subsidiary organs of CIDI where representation is not at the "ministerial or equivalent rank."
Third, Article 10 is a general provision providing for the equal rights of states. Article 77, which permits the formation of subsidiary organs with less than all the Member States as participants, is a specific provision on subsidiary organs. It is a well-accepted principle of statutory interpretation that where there is a perceived conflict between a general provision and a specific provision as applied to the same issue, the specific provision governs. Thus, in this case, Article 77 must take precedence over any inconsistent interpretation attributed to Article 10 in determining legality of the proposed composition of the Board under the Charter.
Finally, the Management Board would not be the first organ within the Organization of American States to be governed, in part, by a management level committee on which less than all the Member States are represented. The Executive Committee of the Inter-American Institute for Cooperation on Agriculture is composed of twelve members, "elected in accordance with the principles of partial rotation and equitable geographic distribution."[14] Similarly, the Inter-American Telecommunication Commission ("CITEL") is virtually governed by its Permanent Executive Committee, COM/CITEL, because the CITEL Assembly meets regularly only once every four years. Under Article 14 of the CITEL Statute, COM/CITEL "is composed of eleven member states of CITEL" and in selecting those members, "the principles of rotation and of an equitable geographic representation are observed." Other examples of subsidiary organs with less than full representation of all the Member States include CIM's Executive Committee of seven members[15], and the former Permanent Executive Committee for Education, Science, and Culture ("CEPCIECC"), which had only eleven members when first created as a subsidiary organ of the former Inter-American Council for Science, Education and Culture[16].
E. May the project-approval function and other functions currently performed by the CEPCIDI be transferred to OASDA without Charter Reform?
The Proposal would transfer to OASDA important policy advisory and project-approval, evaluation, and oversight functions currently performed by CEPCIDI. In general, that transfer does not raise questions under the Charter. Although it is a vital subsidiary organ of CIDI, CEPCIDI is not specifically mentioned in the Charter. Rather, it was created by the General Assembly and CIDI and assigned its functions pursuant to Articles 54, 73, 77, and 93 of the Charter. Inasmuch as the power to create implies the power to modify and destroy, the General Assembly, together with CIDI, may change CEPCIDI's functions, transfer them to another organ, or even abolish CEPCIDI altogether. The only limitation on that authority is the provision in Article 54 which states that the General Assembly must exercise its authority "in accordance with the provisions of the Charter and other inter-American treaties." In that regard, we know of no provision in the Charter which would prevent the transfer of CEPCIDI's functions to another subsidiary organ of CIDI.
It is not, however, unreasonable to question whether it is appropriate to transfer to a subsidiary organ on which only seven Member States are represented the authority to approve CIDI projects funded with multilateral and specific resources voluntarily contributed. Article 55 of the Charter states, in part: "All decisions on budgetary matters require the approval of two thirds of the Member States." The decision to approve projects may reasonably be characterized as a decision on a "budgetary matter" because it allocates financial resources to certain defined projects. It might be argued that because this is a budgetary decision, it requires approval of two thirds of the Member States in CEPCIDI or another organ in which all the Member States are represented, and that therefore, it cannot be taken by Board composed of only seven members.
Although that argument is not unreasonable, we believe that the Charter and the concept of the Program Budget do not dictate or otherwise require the conclusion that decisions by OASDA to allocate FEMCIDI resources, specific funds, and other voluntary funds to specific projects are "decisions on budgetary matters" within the scope of Article 55 of the Charter. The reasons are several:
First, it is reasonable to conclude that the Draftsmen of the Charter intended that Article 55 apply only to decisions of the General Assembly regarding the approval of the Program-Budget. Article 55 is not within the General Provisions applying to all organs of the Organization in Chapters I and XX of the Charter. Nor is it in Chapter XI - XIII specifically governing the operations, functions and competence of the Councils[17]. Rather, it is in Chapter IX which is the specific Chapter on the General Assembly and it is in the specific Article which relates to quota resources[18].
In practice, the other Organs of the Organization have adopted rules requiring a two-thirds vote of the Member States in taking budgetary decisions. Nonetheless, their adoption of that Rule does not require the conclusion that their decision to do so was required by the Charter. Rather, the decision of the draftsmen of the Charter to place the language requiring a two-thirds vote only in the Chapter on the General Assembly and not in the provisions governing the Councils and other Organs permits the conclusion that the Charter does not necessarily require the two-thirds qualified majority for budgetary decisions of other Organs[19].
Second, although Article 54 and Article 55, when read together, states that the General Assembly must approve the program-budget of the Organization by a two-thirds vote of the Member States ("qualified majority"), the Charter does not clearly define what must be included in the program-budget[20]. Nor does it state whether the program-budget must include voluntary multilateral funds and specific fund resources[21]; or whether the program-budget must include allocations to specific projects as well as to specific programs in order to constitute a "program-budget" within the accepted meaning of that term[22].
Third, in practice, decisions regarding the allocation of many specific fund resources are not subject to a vote of two thirds of the Member States. Rather, the disposition of those resources is usually determined by agreement between the donor and the General Secretariat. Article 74 of the General Standards sets out requirements for negotiating overhead and technical advisory fees from those funds, and Articles 68 and 69 of the Standards require the Secretary General to notify the Member States of the terms by which they have been accepted. Nonetheless, the designation of the projects that will receive those funds is left to the donor and donee (usually the General Secretariat).
Fourth, also in practice, not all decisions on budgetary matters below the "Program-level" require a vote of two-thirds of the Member States. For example, Article 99 of the General Standards authorizes the Secretary General to redirect funds within programs and between programs in the same Chapter, if such redirection does not essentially alter the nature of the program[23]. Thus, the political bodies have recognized, in adopting Article 99, that decisions regarding the expenditure of resources at the project level within programs which they have already approved are not "budgetary decisions" requiring a vote of two thirds of the member states.
Fifth, in the case of the proposed OASDA, budgetary decisions at the program level for the expenditure of FEMCIDI and regular fund resources (if any) will continue to be made by the CIDI ministerial meetings, subject to approval by the General Assembly in approving the annual program-budget. Thus, the major decisions on the assignment of resources by program will continue to be taken by a qualified majority of the Member States.
Sixth, the General Assembly has already established a precedent for expressly assigning to an OAS organ's subsidiary body in which less than all the member states are represented the authority to allocate program resources to specific projects. In the case of CITEL, Article 17 of the CITEL Statute, which was approved by the General Assembly in AG/RES. 1224 (XXIII-O/98), assigns to COM/CITEL (an eleven-member Committee) the responsibility for approving CITEL's Work Plan for the expenditure of its funds and the responsibility for carrying out all of CITEL's objectives[24]. Indeed, the CITEL Assembly, which is the CITEL Organ on which all the Member States are represented, has no express budgetary functions under the Statute. Responsibility for those decisions resides in the eleven-member COM/CITEL[25].
For all the above reasons, Article 55 of the Charter does not pose an obstacle to transferring the project approval function from CEPCIDI to the seven-member Management Board of OASDA. Nonetheless, such a transfer will require modifications of the provisions on FEMCIDI and on the program-budget in the General Standards; of the FEMCIDI Statute; and of the provisions on CEPCIDI in the CIDI Statute and CIDI's Rules of Procedure.
F. Would the establishment of OASDA usurp the functions of SEDI assigned under Article 98 of the Charter?
Article 98 of the Charter clearly establishes that SEDI has the responsibility for the "execution and, if applicable, the coordination" of CIDI approved technical cooperation projects. It states:
The execution and, if appropriate, the coordination of approved projects shall be entrusted to the Executive Secretariat for Integral Development, which shall report on the results of that execution to the Council.
The language of Article 98 suggests several ways in which SEDI may fulfill its responsibilities under that Article: The first is for SEDI to execute and coordinate projects itself and make the corresponding reports to CIDI. The other is for SEDI to take responsibility for the execution and coordination and the reporting to CIDI, but to contract out the actual coordination and execution functions to another entity as its agent. Whatever option is selected, the Charter clearly places responsibility for execution, and if appropriate, coordination on SEDI. Any proposal to divest SEDI of that responsibility would directly conflict with the Charter. Thus, whatever new entity is created within CIDI to administer technical cooperation must allow SEDI to fulfill its responsibilities under Article 98 of the Charter.
The Proposal complies with the requirements of Article 98 by designating SEDI as the Secretariat of OASDA. In theory, another option for complying with Article 98 would be to create an independent Secretariat for OASDA, and to have SEDI contract with OASDA for the execution and, where appropriate, the coordination of projects. Under that theoretical option, SEDI, as the principal, would remain responsible for the performance of the OASDA, its agent, and SEDI would report directly to CIDI as required under the Charter. The Proposal, however, eliminates the need for the principal/agent relationship by directly assigning SEDI the task as serving as the OASDA Secretariat. Indeed, it does not usurp SEDI's functions; on the contrary, it may enhance them.
Some delegations have suggested that the Executive Secretariat might loose its legal identity if it becomes the Secretariat of OASDA. That should not be a concern.
The decision to provide OASDA with secretariat services from the Executive Secretariat for Integral Development, which is presently part of the General Secretariat, instead of providing it with an independent secretariat of its own, is not without precedent in the Organization. In fact, most organs of the Organization are served by the staff of the General Secretariat. They include, among others, CIM, CICAD, the Children's Institute, CITEL, the Councils, the General Assembly, and most of the Specialized Conferences[26].
In those cases where the General Secretariat provides Secretariat services to another organ pursuant to the recipient organ's statute, the staff assigned by the General Secretariat to provide those services retain their legal status and rights as General Secretariat staff members. Nonetheless, confusion some-times arises among those persons outside the Organization as to the identity of those staff members because the staff members may appear to be staff members of the recipient organ itself. Such is often the case of staff provided by the General Secretariat to the Inter-American Human Rights Commission, the Inter-American Children's Institute, the Inter-American Commission of Women, and to CICAD.
We would suggest that in order to avoid similar confusion as to the identity of SEDI within OASDA, SEDI should be officially recognized by its own name in all OASDA organizational charts as the organ inside OASDA providing it with secretariat services. Moreover, all documents, rules, letterhead, and logos of the new agency should refer to the OASDA Secretariat as the "Executive Secretariat for Integral Development."
G. Does appointing the Executive Secretary for Integral Development as "Administrator" of OASDA undermine the position of the Executive Secretary for Integral Development under the Charter?
Article 117 obligates the Secretary General to "appoint, with the approval of the Inter-American Council for Integral Development, an Executive Secretary for Integral Development." That is all the Charter says about that post. It states little about the Executive Secretary's rank within the Organization or the Executive Secretary's functions. The title of the position implies, however, that the Executive Secretary is the official in charge of the Executive Secretariat for Integral Development[27].
What was left unsaid about the Executive Secretary's functions in the Charter has since been established by the General Assembly. Article 17 of the CIDI Statute, adopted by the General Assembly upon CIDI's recommendation in 1996, states that the Executive Secretary "Shall direct the Executive Secretariat and fulfill those functions and responsibilities that are established in these Statutes within the framework of the Charter." Article 17 goes on to elaborate the specific functions of SEDI, which the Executive Secretary is responsible to CIDI for directing. Articles 23 and 57 of CIDI's Rules of Procedure, as well as Articles 19, 20, and 30 of the FEMCIDI Statute establish additional responsibilities and functions for the Executive Secretary.
The Proposal would make the Executive Secretary "Administrator" of the Agency. Inasmuch as the Executive Secretary would be performing the job of Administrator, it would be difficult to conclude that the appointment of the Executive Secretary to that position would in any way usurp the Executive Secretary's authority. Under the Proposal, both the Executive Secretary and the "Administrator" are one in the same. In the event, however, that the Administrator of the Agency were to be an official other than the Executive Secretary, the Member States would have to exercise care in creating a line of authority and reporting through the Executive Secretary on to CIDI.
The Proposal suggests that the Executive Secretary would be called the "Chief Executive/Administrator" of OASDA. If there is any concern that such designation would cause the Executive Secretary position to lose its institutional identity under the Charter, we would suggest that the post be known within the new agency by its present nomenclature, "Executive Secretary for Integral Development," or alternatively "Executive Secretary for Integral Development and OASDA Administrator."
H. Will the "Upgrading and Transformation" of the Post of Executive Secretary for Integral Development Undermine the Authority of the Secretary General Under the Charter?
The Proposal also provides that the "Chief Executive/Administrator of the Agency [OASDA] shall be upgraded and transformed to serve as the officer in charge of carrying out the purposes of the Agency." We assume that since the Resolution also provides for the appointment of the Executive Secretary to the post of Administrator, what it means to say is that with the assignment of the functions of "OASDA Administrator" to the Executive Secretary for Integral Development, the position of Executive Secretary for Integral Development will be transformed and upgraded. Even with that clarification, however, the meaning of the term "upgraded" remains unclear. At present, the post is just below that of the Assistant Secretary General.
The Charter clearly establishes a line of authority and responsibility within the General Secretariat which places the Secretary General and Assistant Secretary General in a class by themselves and at the summit of executive authority in the Organization. The reasons are several:
First, they are the only officials elected by the General Assembly, the "supreme organ" of the organization. Second, the Charter expressly designates the Secretary General as the officer entrusted with the direction and legal representation of the Organization, ultimately responsible to the General Assembly. Article 109 states:
The Secretary General shall direct the General Secretariat, be the legal representative thereof, and, notwithstanding the provisions of Article 91(b), be responsible to the General Assembly for the proper fulfillment of the obligations and functions of the General Secretariat.
Third, the Charter designates the Assistant Secretary General as the substitute for the Secretary General when the Secretary General is unable to perform the duties of office. In pertinent part, Article 115 states: "During the temporary absence or disability of the Secretary General, the Assistant Secretary General shall perform his functions."
In contrast, the Executive Secretary is appointed by the Secretary General, with the approval of CIDI. And notwithstanding its primacy in its respective sphere of competence, CIDI is a Council of the Organization and subordinate to the General Assembly. The manner in which the Executive Secretary is appointed under the Charter strongly supports the notion that it is not equal in status under the Charter to that of either the Secretary General or of the Assistant Secretary General. Thus, if that position is to be "upgraded," it must be done in such a way that its status remains inferior to the Organization's two executive positions elected by the General Assembly under the Charter.
I. Can SEDI and the Executive Secretary remain as part of the General Secretariat and enjoy the full range of autonomy from the supervision and direction of the Secretary General without infringing upon the Secretary General's authority under Chapter XVI of the Charter?
If SEDI and the Executive Secretary, as the "Secretariat" and "Administrator of OASDA, are to remain as a part of the General Secretariat, there are limits under the framework established in Chapter XVI of the Charter as to how much autonomy the Executive Secretary and SEDI may have from the rest of the General Secretariat. The Proposal suggests that the Executive Secretary and SEDI will operate virtually free of any direction from the General Secretariat. Complete autonomy from the General Secretariat and from the direction of the Secretary General is not legally viable within the structure of the Secretariat established under the Charter. The reasons are found in Chapter XVI of the Charter.
Article 109 of the Charter clearly establishes that the Secretary General "shall direct the General Secretariat, be the legal representative thereof, and notwithstanding the provisions of Article 91.b, be responsible to the General Assembly for the prior fulfillment of the obligations and functions of the General Secretariat." The Secretary General has the prerogative to exercise his Article 109 authorities alone. No where in the Charter is he compelled to share them with another official. He may, of his own volition and in accordance with his own discretion and business judgment, delegate those functions to others. But he is not compelled to do so. Any proposal which requires an entity of the General Secretariat to serve as Secretariat to another organ must take the Secretary General's Article 109 authority into account[28].
This is not to suggest that there are no limitations on the Secretary General's authority under the Charter. For example, the articles which follow Article 109 in Chapter XVI of the Charter -- Article 111 authorizing the Secretary General to "promote social, juridical, educational, scientific, and cultural relations;" Article 112, which authorizes him, inter alia, to enter into cooperative agreements with other entities; article 113 which sets out his specific personnel and administrative management functions; article 117 which obligates him to appoint the Secretary for Integral Development -- are all subject to regulation and intervention by the political bodies. Yet the Secretary General's authority and obligations under Article 109, except as otherwise limited by those Articles, lies exclusively in his Office.
Thus, it is highly unlikely that the OASDA Secretariat can be designed within the parameters of the Charter so as to be fully autonomous from the direction, legal representation, and responsibility of the Secretary General. What follows below is a discussion of some structural and operational areas in which the autonomy question may prove problematic and how they may be addressed.
1. Legal Personality and the Signing of Technical Cooperation and Project Agreements:
Until such time as OASDA acquires recognized legal personality in the member states by way of agreement, legislation, executive decree, or such other means as may be required under the pertinent laws of the member states, it will have to continue contracting for goods and services and entering into technical cooperation agreements in the name of the General Secretariat. As the legal representative of the General Secretariat under the Charter, the Secretary General is ultimately responsible for the signing and execution of those contracts. Currently, the Executive Secretary for Integral Development signs those contracts, as well as technical cooperation agreements, pursuant to a delegation from the Secretary General. Such delegation should continue until and unless the appropriate instruments for the recognition of OASDA's legal personality enter into force in the member states.
2. Privileges and Immunities of Staff and Assets:
Similarly, until such time as the appropriate agreements, decrees, or legislation are in force in the member states granting privileges and immunities to OASDA, its personnel, and its assets, the new organization will have to rely on the agreements in force covering the General Secretariat. Although those agreements vary to some extent from one country to another, they all assign certain responsibilities and rights directly to the Secretary General because of his status as the "legal representative" of the General Secretariat under Article 109 of the Charter. Those rights and responsibilities include, among others, responsibility for accrediting staff members to the host country and waiving immunities to the extent permitted or as otherwise required under international law[29].
3. Administrative Decisions and Rules for Management of the OASDA Secretariat
Article 113 of the Charter states:
The Secretary General Shall (a) Establish the offices of the Secretariat necessary for its purposes; and (b) Determine the number of the Secretariat's employees, appoint them regulate their powers and duties and fix their remuneration.
The Secretary General shall exercise this authority in accordance with such general standards and budgetary provisions as may be established by the General Assembly.
(Emphasis added). Just how much authority the Secretary General has under Article 113 depends on the general standards and budgetary provisions adopted. If the General Assembly wishes to give him wide discretion in exercising those functions, it can do so. If it wants to reduce his authority under that Article to the performance of narrowly defined ministerial acts preformed pursuant to comprehensive and detailed instructions in the program-budget resolution and detailed general standards, it can do that as well. What the General Assembly cannot do, however, within the structure of the Charter, is deprive the Secretary General of his ministerial authority to make the appointments, establish the offices, publish the salary and compensation scales, and regulate the duties and powers of staff within the guidelines provided.
The Proposal would delegate to the OASDA Management Board, CIDI, and the Permanent Council joint responsibility for drawing up new general standards for the personnel and budgetary management of SEDI as the Secretariat for OASDA and placing them in force. Just how those groups would coordinate their work into a final product and whether it would require final approval from the General Assembly or would be implemented pursuant to a delegation once agreed upon by those three bodies is not clear in the Resolution.
Nonetheless regardless of how the ultimate product is produced and implemented, it will have to take into account the following legal considerations: First, it must respect the acquired rights of existing SEDI staff. Therefore, grandfathering provisions must be included. Second, it must respect the Secretary General's authority under articles 109 and 113. That is, the Secretary General cannot be entirely excluded from the personnel and organizational management of OASDA. It is his responsibility to make appointments, close and open offices, and publish salary scale, and regulate the duties and powers of General Secretariat Staff. Whether the Member States want to require, by way of new general standards, that the Secretary General take those actions in relation to OASDA staff only upon the recommendation of the OASDA Administrator is for them to decide pursuant to the last paragraph Article 113. But whether the Secretary General wishes to delegate the carrying out of those actions to the Administrator is the Secretary General's prerogative under his Article 109 authority.
J. Is Establishing SEDI as a Secretariat outside the General Secretariat a viable option for achieving greater administrative autonomy?
From the foregoing it clear that the only way to obtain total administrative autonomy from the Secretary General for the OASDA Secretariat is to sever the SEDI and its Executive Secretary from the General Secretariat altogether. In theory, such an option is legally viable. Several of the Specialized Agencies have their own staffs. They include IICA, the Inter-American Court of Human Rights, and the Pan American Health Organization. Moreover, there is nothing in the text of the Article 98 which identifies the Executive Secretariat for Integral Development as part of the General Secretariat. The Charter is silent as to whether the Executive Secretariat for Integral Development is just another organ or part of the General Secretariat.
Notwithstanding legal viability, there are some practical difficulties in implementing such a solution. The first is the problem of legal personality and privileges and immunities. Until OASDA can obtain recognition and privileges and immunities by way of agreement, legislation, or decree from the Member States, it will have difficulty transacting its business in all of the member states. Like other organs of the Organization not covered by such instruments, OASDA must rely on the legal personality and privileges and immunities of the General Secretariat for conducting its business in many countries[30]. The easiest way to take advantage of the General Secretariat's privileges and immunities is to remain part of it. Second, the reconfiguration of SEDI as an organ outside the General Secretariat would require the elimination of budgeted posts in the program-budget of the General Secretariat, which, if not properly planned and managed through secondments, might trigger a traumatic and costly reduction in force[31].
IV. CLOSING OBSERVATIONS
A summary of our conclusions is already set out in the Introductory Section. There is no need to repeat them here. Nonetheless, we do have recommendations for modification of the format of the Resolution to improve clarity and ease of understanding.
Historically, the creation of a new organ by the General Assembly pursuant to its authority under Articles 53 and 54 of the Charter has been accompanied by the adoption of the new organ's Statute (i.e., Bylaws)[32]. The Statute clearly establishes in separate numbered sections and in a logical sequence the new organ's purposes; its functions; its structure (members, directors, officers, staffing, subsidiary organs); its membership requirements; the requirements for decision making (voting, quorum); the periodicity and convocation of meetings; the powers and responsibilities of its structural components; provisions for secretariat services and designation of its chief operating officer; its responsibilities to the corresponding Councils and/or General Assembly; its financial basis; and its relationship to other organs in the Inter-American System.
We would suggest that once the Member States reach agreement on the Proposal's substantive content, that the operative section of the Resolution be re-drafted in a much shorter format with one resolutive paragraph creating the OASDA; another paragraph adopting its Statute (Annexed to the Resolution); and a third paragraph setting out any transitory measures. As for the paragraph on transitory measures, it should include a provision delegating to CIDI the authority to approve the necessary amendments to its Statute and asking CIDI to adopt the necessary amendments to its Rules of Procedure, CEPCIDI's Rules of Procedure, and the FEMCIDI Statute so as to conform with the creation of OASDA and the adoption of the OASDA Statute.
ANNEX I
APPLICABLE PROVISIONS OF THE CHARTER
The text of those provisions in the Charter which bear most directly on whether the establishment of OASDA is legally permissible without the need for Charter Reform are set out below. The emphasis (underlining) in the text is ours.
A. Authority to Create Additional Organs and Agencies
Article 53 . . . . There may be established, in addition to those provided for in the Charter and in accordance with the provisions thereof, such subsidiary organs, agencies,and other entities as are considered necessary.
Article 54 The General Assembly is the supreme organ of the Organization of American States. It has as its principal powers, in addition to such others as assigned to it by the Charter, the following:
a. To decide the general action and policy of the Organization, determine the structure and functions of its organs, and consider any matter relating to friendly relations among the American States;
b. To establish measures for coordinating the activities of the organs, agencies, and entities of the Organization among themselves, and such other activities with those of the other institutions of the inter-American system;
The General Assembly shall exercise its powers in accordance with the provisions of the Charter and of other inter-American treaties.
Article 73 The Councils may, within their respective competence, may present to the General Assembly studies and proposals . . . on the creation, modification, or elimination of specialized organizations and other inter-American agencies, as well as on the coordination of their activities.
Article 77 With the prior approval of the General Assembly, the Councils may establish the subsidiary organs and the agencies that they consider advisable for the better performance of their duties. When the General Assembly is not in session, the aforesaid organs or agencies may be established provisionally by the corresponding Council. In constituting the membership of these bodies, the Councils, insofar as possible, shall follow the criteria of rotation and equitable geographic representation.
Article 93 . . . . In keeping with the provisions of the Charter, the Inter-American Council for Integral Development may establish the subsidiary bodies and the agencies that it considers advisable for the better performance of its duties.
B. Authority to Make Budgetary Decisions
Article 54 [The Powers of the General Assembly include]
e. To approve the program-budget of the Organization and determine the quotas of the Member States.
Article 55 The General Assembly shall establish the basis for fixing the quota that each Government is to contribute to the maintenance of the Organization, taking into account the ability to pay of the respective countries and their determination to contribute in an equitable manner. Decisions on budgetary matters require the approval of two thirds of the Member States.
C. Responsibility for Executing Technical Cooperation Projects
Article 95 In Order to achieve its various goals, especially in the specific area of technical cooperation, the Inter-American Council for Integral Development shall:
. . . .
c. Promote, coordinate, and assign responsibility for the execution of development programs and projects to the subsidiary bodies and relevant organizations, on the basis of the priorities identified by the Member Sates . . . .
These ends shall be furthered by sectoral participation mechanisms and other subsidiary bodies and organizations established by the Charter and by other General Assembly provisions;
Article 98 The execution and, if appropriate, the coordination of approved projects shall be entrusted by the Executive Secretariat for Integral Development, which shall report on the results of that execution to the Council.
D. Role of General Secretariat in Technical Cooperation
Article 107 The General Secretariat is the central and permanent organ of the Organization of American States. It shall perform the functions assigned to it in the Charter, in other inter-American treaties and agreements, and by the General Assembly, and shall carry out the duties entrusted to it by the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, or the Councils.
Article 111 The General Secretariat shall promote economic, social, juridical, educational, scientific, and cultural relations among all the Member States of the Organization, with special emphasis on cooperation for the elimination of extreme poverty, in keeping with the actions and policies decided upon by the General Assembly and with the pertinent decisions of the Councils.
Article 112(h) The General Secretariat shall . . . establish relations of cooperation in accordance with decisions reached by the General Assembly or the Councils, with the Specialized Organizations as well as other national and international organizations.
Article 117 The Secretary General shall appoint, with the approval of the Inter-American Council for Integral Development, an Executive Secretary for Integral Development.
Article 138 Within the provisions of this Charter, the competent organs shall endeavor to obtain greater collaboration from countries not Members of the Organization in the area of cooperation for development.
E. Authority of the Secretary General to Manage General Secretariat
Article 109 The Secretary General shall direct the General Secretariat, be the legal representative thereof, and, notwithstanding the provisions of Article 91.b, be responsible to the General Assembly for the proper fulfillment of the obligations and functions for the General Secretariat.
Article 113 The Secretary General shall:
a. Establish such offices of the General Secretariat as are necessary to accomplish its purposes; and
b. Determine the number of officers and employees of the General Secretariat, appoint them, regulate their powers and duties, and fix their remuneration.
The Secretary General shall exercise this authority in accordance with such general standards and budgetary provisions as may be established by the General Assembly.
F. Other Pertinent Provisions
[1] Also known as "Proposal No. 4" and "Proposal D". [2] CEPCIECC is the acronym for the Permanent Executive Committee of the Inter-American Council for Education, Science, and Culture.Article 10 States are juridically equal, enjoy equal rights and equal capacity to exercise these rights, and have equal duties. The rights of each State depend not upon its power to ensure the exercise thereof, but upon the mere fact of its existence as a person under international law.
Article 93 The Inter-American Council for Integral Development is composed of one principal representative of ministerial or equivalent rank, for each Member State, especially appointed by the respective Government.
Article 112 The General Secretariat shall also perform the following functions . . . . (c) Prepare the program-budget of the Organization on the basis of programs adopted by the Councils, agencies, and entities whose expenses should be included in the program-budget and, after consultation with the Councils or their permanent committees, submit it to the Preparatory Committee of the General Assembly and then to the Assembly itself.
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[3] One option is simply to leave the title entirely unchanged as the "Executive Secretary for Integral Development." Another is to call it the "Executive Secretary for Integral Development and OASDA Administrator."
[4] The General Assembly may delegate this authority to the Permanent Council and has done so on several occasions in the past. See, e.g., AG/RES. 1319 (XXV-O/95); AG/RES. 1382 (XXVI-O/96); CP/RES. 652 (1033/95); CP/RES. 703 (1122/97)[5] See The Proposal, Operative Paragraph No. 2(a).
[6] The Proposal does not specify that the Board will have authority to adopt its own rules of procedure [for taking decisions, structuring its meetings, etc.] but we assume that this is intended.
[7] The Charter provides a road map for the creation of a subsidiary organ by a Council. Normally, the initiative will come from the corresponding Council itself, in accordance with Articles 73 and 77. The subsidiary organ may either than be created by the corresponding Council with the prior approval of the General Assembly, or may be established provisionally by that Council when the General Assembly is not in session, subject to the General Assembly's subsequent consideration and approval.
[8] It is a general principle of statutory interpretation that words in statutes are construed in accordance with their common and ordinary usage, unless otherwise indicated by the legislative history or specialized practice. Webster's New Collegiate Dictionary (1977) defines "subsidiary" as "furnishing aid and support; of secondary importance."
[9] See CIDI Statute, Article 5. [10] See The Proposal, Operative Paragraph 2. [11] See, e.g., The Convention on the Inter-American Institute for Cooperation on Agriculture. [12] Article 10 states:States are juridically equal, enjoy equal rights and equal capacity to exercise these rights, and have equal duties. The rights of each State depend not upon its power to ensure the exercise thereof, but upon the mere fact of its existence as a person under international law.
[13] In pertinent part, Article 93 states:
[14] Article 8 of the Convention on the Inter-American Institute for Cooperation on Agriculture States: "The Board [Inter-American Board of Agriculture] shall have the following functions . . . . to elect the Member States that will compose the Executive Committee, in accordance with the principles of partial rotation and equitable geographic distribution." Article 13 of the same convention goes on to state:The Inter-American Council for Integral Development is composed of one principal representative of ministerial or equivalent rank, for each Member State, especially appointed by the respective Government.
The Executive Committee (hereinafter the Committee) shall be composed of twelve Member States elected in accordance with Article 8, subparagraph (e), for a two-year term. The Government of each elected State shall designate one representative, preferably connected with agricultural and rural development . . .
Article 5A of the Rules of Procedure of the Executive Committee establishes a procedure for rotating the Committee membership among four geographical groupings of IICA's Member States.
[15] Like IICA's Executive Committee members, the CIM Executive Committee members are elected on a rotating basis to assure equitable geographical distribution. See CIM Statute, Articles 21, 22. [16] See Statute of the Inter-American Council for Education, Science, and Culture, Articles 28 - 31, AG/doc. 51 Rev.2, approved by the First Special Meeting of the General Assembly, July 7, 1970). Article 30 of the statute similarly states that the members are to be chosen in accordance with the principle of equitable geographic distribution. [17] We would argue, however, that in those cases in which Permanent Council takes decisions of a budgetary nature pursuant to Article 91(b) of the Charter because the General Assembly is not in session to take them, the qualified majority (2/3 of the Member States) is required. The reason is that in that case, the Permanent Council is performing a function of the General Assembly and should abide by the General Assembly's decision-making rule. [18] Indeed, there is no express provision in the Charter on funding the Organization with specific funds or a voluntary multilateral fund like FEMCIDI or the management and allocation of those funds. Article 138 does, however, allude to cooperation with non-Member states, thereby implying that such funds may be received by the Organization and its Organs. It states: "Within the provisions of this Charter, the competent organs shall endeavor to obtain greater collaboration from countries not Members of the Organization in the area of cooperation for development." [19] Other support for this conclusion is in the text of the Article itself. If the draftsmen had wanted Article 55 to apply throughout the Organization, they could have clarified the text by inserting the modifier phase "of the Organization" or "of the Organs of the Organization" after the word "decisions." Their failure to do so reinforces the conclusion that by placing the text in the Section of the Charter on the General Assembly, they manifested an intent to have that provision apply necessarily to the General Assembly. [20] Article 112(c) provides that the Secretary General should "prepare the proposed program-budget of the Organization on the basis of programs adopted by the Councils, agencies, and entities, whose expenses should be included in the program-budget . . . ." Yet there is no requirement in the Charter for a break-down of expenses by project or other categories. [21] Article 80 of the General Standards requires that the proposed program budget include:all the activities and services that are the responsibility of the General Secretariat for carrying out the programs adopted by the organs, subsidiary organs, agencies, and other entities of the Organization whose expenses should be included in the program-budget, with the respective proposed sources of financing as well as the mandates and resolutions in effect, maintaining the priorities indicated by them in adopting their programs.
It goes on to say that the budget shall be organized so as to "enable each council to review the programs, projects, and activities planned in its sphere of action and to identify all the specific sources of their financing, including the contributions of the countries in which projects or direct are undertaken." Article 84 requires that the proposed program-budget also include "an estimate of the voluntary contributions needed to finance the activities programmed that are to be charged to FEMCIDI" and a list of any other resources from public or private funds that have been offered to finance programs or projects of the Organization. Thus, by adopting those General Standards, the General Assembly, has taken the decision to include FEMCIDI and to the extent feasible, special funds, in the program-budget. It is not, however, a decision expressly mandated by the Charter.
[22] Article 81 of the General Standards states that in the proposed program budget, the General Secretariat shall include in each Chapter "the estimated total cost by project, from beginning to end." Again, however, the decision to require a budget at that level of detail was a decision of the General Assembly and not necessarily required under the broader language of the Charter. The General Assembly could alternatively decide that the Budget for technical assistance it approves include only allocations at the program level, giving discretion to the implementing organ to allocate programmed resources among projects in accordance with the applicable program guidelines and policies.[23] Specifically, Article 99 states:
The Secretary General has the authority to redirect resources from the Regular Fund within a program and, if such redirection does not essentially alter the nature of the program receiving or delivering the funds, also has the authority to make transfers between programs within each chapter.
In the case of activities financed by the Regular Fund that involve direct services to the member states, he shall justify such transfers to the CAAP, on the basis of current mandates from the General Assembly, the Permanent Council or CIDI, as appropriate. The Secretary General shall inform the Permanent Council of these transfers within thirty days.
Under the pre-1997 version of the General Standards, there was no restriction whatsoever on transfers between programs and projects within a Chapter. Moreover, the pre-1997 Article 74 was the predecessor of the present Article 98, which permits transfers between chapters of up to 5% of the amounts in the corresponding chapters. And as for those 5% transfers between Chapters, Article 74, unlike its successor provision Article 98, contained no reporting requirement to the Permanent Council or CIDI. Rather, it stated:
Within each fund financing the program-budget, the General Secretariat may make transfers from one chapter to another, in accordance with whatever resolution the General Assembly has adopted on the program-budget; in the case of the special multilateral funds, if there has been no decision by the General Assembly on the matter, the decision of the appropriate Council shall be followed.
The "decision of the General Assembly" referred to in that Article was the provision customarily adopted each year as a "General Condition" within the Program-Budget Resolution authorizing such transfers in an amount of up to 5% of the corresponding chapters. In the Program Budget for 1999, the 5% limitation was made a part of Article 98 of the General Standards through a provision in the General Conditions amending that Article. See AG/RES. 1 (XXV-E/98), Part III(A)(11).
[24] See Statute of Inter-American Telecommunication Commission, Articles 3, 5, 14, 17, 28.
[25] Id., Articles 5 and 17. [26] Nonetheless, approximately half of the Specialized Organizations are served by secretariats which are entirely independent form the General Secretariat. They include IICA, the Pan American Health Organization ("PAHO"), the Inter-American Institute for Geography and History, the Inter-American Indian Institute, and Inter-American Human Rights Court. [27] There is some logic to the argument that the decision of the draftsmen of the Charter to include the provision on the appointment of the Executive Secretary in Chapter XVI of the Charter on the General Secretariat, instead of in Chapter XIV on CIDI, suggests that it was their intent that the Executive Secretary for Integral Development be part of and therefore a staff member of the General Secretariat and administratively subordinate to the Secretary General. Others could argue, however, that reference to the position in that Chapter was made to the Executive Secretary solely because it is among the Secretary General's authority to appoint him, and that the Secretary General's limited power of appointment in this case does not necessarily require the conclusion that the Executive Secretary is a staff member. Indeed, the Secretary General appoints other officials, such as the staff of the Inter-American Human Rights Court, who are not staff members of the Secretariat. Thus, whether the Executive Secretary for Integral Development is necessarily a staff member of the General Secretariat is an issue that cannot definitively be resolved by reference to the text of the Charter alone. [28] Chapter V of the CITEL Statute (Articles 25 -27, approved by the General Assembly in Resolution AG/RES. 1224 (XXIII-O/93) serves as an example. Article 26 specifies that the Secretary General "shall appoint" the Executive Secretary of CITEL "in consultation with COM/CITEL." It further provides that the Executive Secretary "when so authorized" by the Secretary General, shall represent him with voice but without vote in the CITEL Assembly, COM/CITEL, CITEL's Permanent Consultative Committees, and other OAS meetings. Moreover, it emphasizes that the Executive Secretary is bound to perform "those functions in accordance with the General Standards governing the Operation of the General Secretariat of the Organization ("General Standards") and other rules and regulations that apply to the General Secretariat and its personnel."[29] See, e.g., General Agreement Between the General Secretariat . . . and the Government of the Republic of Argentina on the Functioning of the Representation of the General Secretariat in Argentina (1988), Articles 18 and 25; Agreement on Privileges and Immunities of the Organization of American States (in force in thirteen member states), Articles 9 - 15; Headquarters Agreement Between the OAS and the Government of the United States of America, Article 16(1). [30] For example, the privileges and immunities of the Headquarters Agreement with the United States Government would not automatically apply to OASDA and SEDI if SEDI were to be separated from the General Secretariat. Section 1, Article 1, describes the "Organization," for purposes of that Agreement, as:Regarding the rest of the Secretariat, Article 27 states:
The General Secretariat of the Organization shall provide secretariat services to CITEL in accordance with the allocation of funds in the program-budget of the Organization, and the Secretary General shall appoint the technical and administrative personnel to provide those services in accordance with the General Standards and such other rules and regulations governing the operations of the General Secretariat of the Organization.
(Emphasis added).
any and all organs, agencies, and entities encompassed by Article 52 [now 53] of the Charter that (1) have a presence in the United States; (2) are dependent on the General Assembly of the Organization of American States for the determination of their regular operating budget; and (3) are dependent upon the General Secretariat of the Organization of American States for their permanent secretariat services. "Organization" and "Organization of American States" do not include any other organ, agency, or entity encompassed by Article 52 except to the extent this Agreement has been extended to such other organ, agency, or entity pursuant to Article XX of this Agreement.
Article XX goes on to state that the Agreement may be extended to other entities "by the agreement of the Secretary General, the Secretary of State, and the ranking official of the organ, agency, or entity in question. We would construe this as simply requiring the signature of those parties; however, the definitive opinion on what preliminary procedures, if any, must be satisfied before securing signature of the Secretary of State should be obtained from the Office of the Legal Advisor of the United States Department of State.
[31] The severity of the Reduction in Force could be reduced, however, by having the affected staff members seconded to OASDA under Article 28 of the General Standards and Staff Rule 105.6. Under those provisions, OASDA would have to reimburse the General Secretariat the full cost of all the salary, benefits, and other rights to which those staff members are entitled as General Secretariat staff members. Also, no secondment may be ordered without the staff member's consent. [32] See, e.g., AG/RES. 813 (XVI-O/86), "Establishment of the Inter-American Drug Abuse Control Commission and Approval of its Statute;" AG/RES. 1224 (XXIII-O/93), "Establishment of the Inter-American Telecommunication Commission (CITEL) and Approval of its Statute."