RESTRICTED WORLD TRADE WT/GC/W/72 4 December 1997 ORGANIZATION (97-5315)

General Council

INTERNATIONAL LAW AND PRACTICE IN RESPECT OF ACCREDITATION OF REPRESENTATION TO INTERNATIONAL ORGANIZATIONS

Note by the Secretariat

1. This note was prepared and is being circulated at the request of the Chairman of the General Council. It discusses international law and practice in respect of accreditation of representatives to international organizations. It is organized as follows: First, there is an analysis of the provisions of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character. Second, the situation of the World Trade Organization is considered in light of the Vienna Convention. Third, there is a survey of the practices of other international organizations in respect of accreditation.

I. THE VIENNA CONVENTION

2. The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character ("Vienna Convention"), concluded in 1975, provides as follows:

"Article 10 Credentials of the

"The credentials of the head of mission shall be issued by the Head of State, by the Head of Government, by the Minister for Foreign Affairs or, if the rules of the Organization so permit, by another competent authority of the sending State and shall be transmitted to the Organization".

The Vienna Convention has not yet entered into force since only 30 states are party to it (the entry into force requires 35 state parties, Article 89:1).1 Moreover, in order for the Convention to apply to the WTO, it would need to be accepted by Switzerland as the WTO's host state and to be formally implemented by the WTO itself (Articles 2:1 and 90). However, some of the provisions of the Vienna Convention are arguably part of customary international law and, to that extent, also apply to the relations between the WTO and its Members.

3. According to the Vienna Convention, a document of accreditation should thus be issued by either:

(a) the Head of State; or (b) the Head of Government; or (c) the Minister for Foreign Affairs; or

1The following 23 WTO Members are parties to the Vienna Convention: Argentina, Barbados, Brazil, Cameroon, Chile, Cuba, Cyprus, Czech Republic, Ecuador, Guatemala, Hungary, Jamaica, Mongolia, Nigeria, Panama, Peru, Poland, Rwanda, Slovak Republic, Slovenia, Tunisia, Turkey and Tanzania. WT/GC/W/72 Page 2

(d) "another competent authority" of the sending state, but this only if the rules of the international organization so permit.

It should be noted that, according to the Vienna Convention, this rule not only applies to Permanent Representatives but also to Permanent Observers (Article 1:17).

4. The Commentary to Article 10 states that it is based on paragraph 1 of the UN General Assembly resolution 257 A (III) on permanent missions, adopted on 3 December 1958, which reads:

"... credentials of the permanent representatives shall be issued either by the Head of State or by the Head of Government or by the Minister of Foreign Affairs ...".2

This rule on accreditation to the UN, summing up an exhaustive list of persons who can issue credentials, still stands today3 and is, in the absence of more specific rules, arguably part of customary international law applicable to the WTO.4

5. As stressed in the discussion of Article 10 of the Vienna Convention in the International Law Commission, the fourth possibility provided under Article 10 ("or, if the rules of the Organization so permit, by another competent authority") "constitutes an exception and a departure from the general rule".5 The Commentary justified this fourth possibility as follows:

"In the case of some specialized agencies the credentials of permanent representatives may also be issued by the member of government responsible for the department which corresponds to the field of competence of the organization concerned. For instance, credentials to ICAO are usually signed by the Minister for Foreign Affairs or the Minister of Communications or Transport".6

With respect to this fourth possibility, the drafters had two, somewhat conflicting, concerns: (1) they wanted to be flexible and cope with different types of international organizations and national state practices; (2) they wanted to be strict in that only authorities of the highest rank would be allowed to issue credentials. To meet the first concern, the original language "or by another competent minister" was replaced by "or by another competent authority", according to the Commentary, "because a

2Yearbook of the International Law Commission ("YILC"), 1971, Vol. II, Part One, p. 292.

3See the UN Guidelines on Diplomatic Courtesy in Geneva, paragraph 2: "Credentials of Permanent Representatives are issued either by the Head of State or Government, or by the Minister for Foreign Affairs ...". See also Article 27 of the rules of procedure of the UN General Assembly.

4One member of the International Law Commission noted: "The competence of the Head of State, the Head of Government and the Minister for Foreign Affairs to issue credentials derived solely from international law" (Comment on draft convention by Mr. Reuter, YILC, 1971, Vol. I, p. 170).

5Comment on draft convention by Mr. El-Erian (Special Rapporteur), YILC, 1971, Vol. I, p. 26.

6Op. cit., p. 293. In the discussion, reference is also made to the ILO, UNESCO and WHO: "The ILO, for example, would be the concern of the Minister of Labour, WHO that of the Minister of Health, UNESCO that of the Minister of Education and so on" (Comment on draft convention by Mr. Sette Camara, YILC, 1971, Vol. I, p. 25). WT/GC/W/72 Page 3 reasonable degree of latitude appeared desirable in view of the widely varying nature of international organizations and State practice". Hinting at the second concern, the Commentary adds: "[t]hus in some States credentials are issued by authorities which although equivalent, cannot be termed ministers".7

6. Reading the discussion of the draft convention by the members of the International Law Commission, another tension can be detected: between, on the one hand, the internal law of the sending state (giving preference to the national practice within that state on who issues credentials in the name of state sovereignty and in order to make sure that the eventual representative will bind the state more firmly) and, on the other hand, international law and the practice of internationalorganizations(imposing restrictions on the discretion of states on how to nominate their representatives in order to prevent conflicts and to discourage any undue proliferation of other "authorities" issuing credentials). The compromise found in Article 10 was to restrict issuance of credentials to the Head of State or Government or Minister for Foreign Affairs (thus imposing international rules restricting the sending state's discretion), but at the same time to allow other "competent authorities" to issue credentials (increasing the sending state's discretion) subject, however, to a rule of the international organization concerned which permits to do so (making such increase in the sending state's discretion subject to international practice).

7. Neither under international customary law nor under the Vienna Convention, does there seem to be room for credentials to be issued by the new representative him(her)self or by the local Mission of the sending state (unless, of course, the international organization concerned would explicitly allow this). The "other competent authority" provided for in Article 10 only seems to refer to the member of government (or highest ranking person) responsible for the subject matters corresponding to the international organization's competence.

8. In this respect, it could finally be noted that the general rule that only the Head of State, the Head of Government and the Minister for Foreign Affairs have the power to issue credentials, i.e., to bind the sending state without having to present credentials themselves, is reflected in Article 7 of the Vienna Convention on the Law of Treaties. Paragraph 2 of Article 7 provides as follows:

"In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

"(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty".

II. THE VIENNA CONVENTION APPLIED TO THE WTO

9. The WTO is clearly an "international organization of a universal character" falling within the scope of the Vienna Convention. Article 1 of the Convention defines "international organization of a universal character" as "the United Nations specialized agencies, the International Atomic Energy Agency [IAEA] and any similar organization whose membership and responsibilities are on a world-wide scale". As of 1997, the IAEA had 124 members. Currently the WTO has 132 members.

10. Applying Article 10 of the Vienna Convention to the WTO (assuming that this provision is part of international customary law), one could question whether the fourth possibility for issuance of credentials ("or, if the rules of the Organization so permit, by another competent authority") is

7Ibid. WT/GC/W/72 Page 4 available. In order for such other "competent authority" to be allowed to issue credentials, there needs to be a "rule" of the WTO which so permits.

11. At this time there is no explicit decision of the General Council so permitting. However, a practice has been established among GATT/WTO Members that, although most credentials (and full powers) are signed by either the Head of State or Government or the Minister for Foreign Affairs, also other high-ranking officials issue credentials (and full powers). This practice is in fact essential for the WTO since the WTO's membership includes separate customs territories that may not have a Head of State or Government or Minister for Foreign Affairs in the usual sense of those words. Moreover, the WTO seems to be one of those organizations with specific competences that the drafters had in mind when providing for the fourth possibility under Article 10. Indeed, in light of the concern of the GATT/WTO with trade matters, in some cases other ministers, particularly trade ministers, issue credentials (and full powers). If this GATT/WTO "practice" can be considered as a "rule of the Organization" it would seem that, even though the general rule remains that either the Head of State or Government or the Minister for Foreign Affairs issue credentials, also a trade minister (or any "member of government responsible for the department which corresponds to the field of competence"8 of the WTO) could today (even without an explicit decision by the General Council) issue credentials to the WTO. This interpretation of "rule of the Organization" to also include a practice, was confirmed in the commentary to Article 3 of the Vienna Convention (providing, inter alia, that "any relevant rules of the Organization" prevail over the Vienna Convention):

"The expression 'relevant rules of the Organization' is broad enough to include all relevant rules whatever their nature: constituent instruments, certain decisions and resolutions of the organization concerned or a well-established practice prevailing in that organization" (emphasis added).9

12. In this regard, it is noteworthy that WTO and GATT practice has always required the production of full powers signed by the Head of State, Head of Government, Minister for Foreign Affairs or other similar competent authority (usually trade ministers) in order for an or Permanent Representative to accept by signature a or other legal instrument.10 This practice is in accord with Article 12 of the Vienna Convention.11

13. Finally, it should be reminded that with respect to representation to the Ministerial Conference of the WTO, the Rules of Procedure for Sessions of the Ministerial Conference provide as follows:

"Rule 7 Each Member shall be represented by an accredited representative.

"Rule 8 Each representative may be accompanied by such alternates and advisers as the representative may require.

8Commentary (to Article 10), op. cit., p. 293.

9Commentary (to Article 3), op. cit., p. 288.

10GATT Doc. L/2785 (1 May 1967).

11Article 12:2 provides as follows: "The head of mission is not considered by virtue of his functions as representing his State for the purpose of signing a treaty ... between that State and the Organization unless it appears from the practice of the Organization, or from other circumstances, that the intention of the parties was to dispense with full powers". WT/GC/W/72 Page 5

"Rule 9 The credentials of representatives shall be submitted to the Secretariat at least one week before the opening of the session. They shall take the form of a communication from or on behalf of the Minister for Foreign Affairs or the competent authority of the Member authorizing the representative to perform on behalf of the Member the functions indicated in the WTO Agreement. The Chairperson after consulting with the Secretariat shall draw attention to any case where a representative has omitted to present credentials in due time and form" (emphasis added).12

III. RULES AND PRACTICE IN OTHER INTERNATIONAL ORGANIZATIONS

14. In the following descriptionof the practices of other internationalorganizations,the abbreviation "UNSA" means United Nations Specialized Agency.

15. Conference on Disarmament - Geneva

The Rules of Procedure of the Conference provide as follows:

"4. The delegation of a member State of the Conference shall consist of a head of delegation and other representatives, advisers, and experts, as may be required.

"5. Each delegation shall be accredited by a letter on the authority of the Minister of Foreign Affairs of the member State, addressed to the President of the Conference".13

16. Food and Agriculture Organization (FAO) - Rome (UNSA)

The FAO Constitution is silent on the question of accreditation. The General Rules of the Organization only indirectly address the issue with respect to credentials of Permanent Representatives participating in the FAO Conference sessions. Paragraph 2 of Rule III states:

"A Permanent Representative to the Organization does not require special credentials if his letter of accreditation to the Organization specifies that he is authorized to represent his government at sessions of the Conference...".

At its special session held in November 1950, the FAO Conference requested member governments "to consider the need to have available in Rome experts personnel to provide a permanent liaison between them and the Headquarters of FAO, and to serve on committees of the Conference and of the Council, in order that the work of these committees may continue to be of the highest technical quality". At its 7th session held in November-December 1953, the FAO Conference adopted Resolution 54/53 entitled "Resident Representatives to FAO", which, inter alia, provides that

"Member Nations, which wish to appoint resident representatives to the Organization who are not and may not become members of diplomatic missions accredited to the Italian Government, consult the Director General in order that he may seek the views of the Italian Government as to the nominations".

In practice, Permanent Representatives to FAO are either (1) selected from the of the FAO Member accredited to the Italian Government (the Ambassador or another

12Document WT/L/161, 25 July 1996, footnote omitted.

13Rules of Procedure of 27 June 1996, CD/8/Rev.7 (emphasis added). WT/GC/W/72 Page 6 member of the Mission) or diplomats included in such missions; or (2) diplomats accredited only to FAO and heading a special mission, the Permanent Representation to FAO. In the first case, it is only once they have been accredited to the Italian Government and have actually submitted their credentials, that the Permanent Representatives can then be also accredited to the Director General of FAO and submit to him their credentials. In the second case, i.e. when the diplomats are accredited to the Director General of FAO only, they may submit their credentials to the Director General only when, on the request of FAO, the Italian Government has formally given its "agreement". Both categories of the above mentioned diplomats enjoy the same privileges and immunities on the Italian territory.

17. International Atomic Energy Agency (IAEA) - Vienna

The IAEA requires written credentials addressed to the Director-General of the IAEA and signed by either (1) the Head of State, (2) the Head of Government or (3) the Minister for Foreign Affairs. Credentials signed by the Acting Minister for Foreign Affairs are acceptable but not credentials signed by the Deputy Minister for Foreign Affairs. Original credentials are handed over by the personally to the Director-General.

18. International Civil Aviation Organization (ICAO) - Montreal (UNSA)

In the ICAO the question of accreditation is governed by Rule 2 of the Rules of Procedure of the Council which provides:

"Credentials of Representatives, of their Alternates and of Observers shall be signed on behalf of the State, organization or body concerned and indicate the capacity in which the individual is to serve, and shall be deposited with the Secretary General".14

In addition, Rule 6 (a) of the Standing Rules of Procedure of the Assembly of the ICAO, states that

"Delegations shall be provided with credentials signed on behalf of the State or organization concerned, by a person duly authorized thereto, specifying the name of each member of the Delegation and indicating the capacity in which he is to serve".15

In practice, the ICAO has shown flexibility with respect to who should sign letters of credentials on behalf of the sending state.

19. International Labour Organization (ILO) - Geneva (UNSA)

There is no separate accreditation of /Permanent Representatives to the ILO. The practice is for them to inform the Director-General of the ILO by letter that they have deposited their credentials with the UN. No other formal action is considered necessary. Special rules exist for representation at the International Labour Conference (ILC). Article 26, paragraph 1, of the Standing Orders of the ILC reads as follows:

"The credentials of delegates and their advisers shall be deposited with the International Labour Office at least 15 days before the date fixed for the opening of the session of the Conference".

14ICAO Doc. 7559/5.

15ICAO Doc. 7600/5. WT/GC/W/72 Page 7

The ILC then appoints a Credentials Committee which will consider any objection concerning the nomination of any delegate or advisor lodged with the Secretary-General. Special rules are provided on the admissibility of such objections. The Credentials Committee decides by unanimity on whether the objection is well-founded. If unanimity cannot be reached, the matter is referred to the Conference. If the Credentials Committee advises that the Conference should refuse to admit any delegate or advisor, the Conference may refuse by two-thirds of the votes cast to admit the delegate or advisor.16 In practice, credentials will be accepted if signed by the Head of State or Government, the Minister for Foreign Affairs, the Minister of Labour or even the Permanent Representative to the UN and Specialized Agencies in Geneva.

20. International Maritime Organization (IMO) - London (UNSA)

On 20 November 1981, the IMO Assembly adopted Resolution A.505(XIII) on the Establishment of Permanent Missions by Member Governments. Annex 2 thereto provides as follows:

"1. For the accreditation of a Permanent Representative to IMCO the member Government concerned shall make known in writing to the Secretary-General the name and rank of the person designated for that purpose.

"2. (a) Where a Member Government wishes to accredit as Permanent Representative a person who is not already or will not be accredited to the Government of the United Kingdom, it shall inform the Secretary-General of the name and rank of such person before accreditation. The Secretary-General shall also be informed if the person nominated is a citizen of the United Kingdom and Colonies or permanently resident in the United Kingdom.

(b) The Secretary-General shall inform the government of the United Kingdom of the nomination and the government may express its views thereon to the Secretary-General.

(c) Where the Government of the United Kingdom raises an objection to a person so nominated, consultations shall take place between the Secretary-General and the Government of the United Kingdom.

"3. The credentials of a Permanent Representative must be issued either by the Head of State or the Head of Government or the Minister for Foreign Affairs and be addressed to the Secretary-General.

"4. As soon as a Permanent Representative assumes functions, the Permanent Mission or diplomatic mission of the Member government concerned will consult the Office of the Secretary-General in order to make the necessary arrangements for the presentation of credentials of the Permanent Representative to the Secretary-General. The Secretary-General will inform the Government of the United Kingdom of the presentation of credentials as soon as possible after such presentation.

"5. For the accreditation of other members of the Permanent Mission, it is sufficient to address a letter to the Secretary-General signed by the Permanent Representative, referring to the instructions received from the Government to this effect. In the case of persons who are not or will not be accredited to the Government of the United

16Article 26, paragraphs 3 to 7. WT/GC/W/72 Page 8

Kingdom and persons who are citizens of the United Kingdom and Colonies or permanently resident in the United Kingdom, the procedure described in paragraph 2 above shall be followed" (emphasis added).

21. International Organization for Migration (IOM) - Geneva

IOM has no accreditation procedure of its own. In practice, the Mission of the sending state in Geneva sends a letter to the IOM informing that the new Ambassador/Permanent Representative has presented credentials to the UN Office in Geneva. Therefore, even though the IOM is formally not part of the UN system, accreditation to the UN Office in Geneva will be sufficient.

22. International Telecommunications Union (ITU) - Geneva (UNSA)

The Ambassadors or Permanent Representatives accredited to the UN Office in Geneva are, de jure, considered as accredited to the ITU. Each new accreditation is notified to the Secretary-General of the ITU by the Director-General of the UN Office in Geneva. With respect to representation to ITU treaty-making conferences, Article 31 of the Convention of the ITU provides as follows:

"324 1. The delegation sent by a member of the Union to a Plenipotentiary Conference, a radiocommunication conference or a world conference on international telecommunications shall be duly accredited in accordance with Nos. 325 to 331 below.

"325 2. (1) Accreditation of delegations to Plenipotentiary Conferences shall be by means of instruments signed by the Head of State, by the Head of Government or by the Minister for Foreign Affairs.

"326 (2) Accreditation of delegations to the other conferences referred to in No. 324 above shall be by means of instruments signed by the Head of State, by the Head of Government, by the Minister for Foreign Affairs or by the Minister responsible for questions dealt with during the conference.

"327 (3) Subject to confirmation prior to the signature of the Final Acts, by one of the authorities mentioned in Nos. 325 or 326 above, a delegation may be provisionally accredited by the Head of the diplomatic mission of the Member concerned to the host government. In the case of a conference held in the Swiss Confederation, a delegation may also be provisionally accredited by the Head of the permanent delegation of the Member concerned to the United Nations Office at Geneva.

"328 3. Credentials shall be accepted if they are signed by one of the competent authorities mentioned in Nos. 325 to 327 above, and fulfil one of the following criteria:

"329 - they confer full powers on the delegation;

"330 - they authorize the delegation to represent its government, without restrictions;

"331 - they give the delegation, or certain members thereof, the right to sign the Final Acts. ... "338 9. Credentials and transfers of powers sent by telegram shall not be accepted. Nevertheless, replies sent by telegram to requests by the Chairman or the WT/GC/W/72 Page 9

secretariat of the conference for clarification of credentials shall be accepted" (emphasis added).

For the other conferences and assemblies of the ITU, the rules on accreditation are less formal:

"339 10. A Member or an authorized entity or organization intending to send a delegation or representative to a telecommunication standardization conference, a telecommunication development conference or a radiocommunication assembly shall so inform the Director of the Bureau of the Sector concerned, indicating the names and functions of the members of the delegation or of the representatives".

With regard to the accreditation of councillors, i.e., representatives of the 46 member states constituting the Council of the ITU, Rule 6 of the Rules of Procedure of the Council provides that "[t]he person appointed as a councillor shall be accredited by his administration by a letter or telegram addressed to the Secretary-General".

23. Organization of Economic Cooperation and Development (OECD) - Paris

There are no explicit guidelines on accreditation to the OECD. The OECD has its own Ambassadors/Permanent Representatives whose credentials are mostly issued by the Minister for Foreign Affairs. However, it does happen that credentials are signed by other Ministers.

24. United Nations Environment Programme (UNEP) - Nairobi (UN Programme)

The country accrediting a Permanent Representative (who may also be Ambassador to Kenya, but can also be located in another country) has to issue credentials to the Executive Director of UNEP, signed by either the Head of State or Government or the Minister for Foreign Affairs.

25. World Health Organization (WHO) - Geneva (UNSA)

There is no separate accreditation to the WHO as such. An Ambassador/Permanent Representative is automatically recognised as representing the country concerned if he/she is duly accredited to the UN. However, there are explicit rules on accreditation to the World Health Assembly (WHA). Rule 22 of the Rules of Procedure of the WHA provides as follows:

"(a) Each Member, Associate Member and participating intergovernmental and invited non-governmental organization shall communicate to the Director-General, if possible fifteen days before the date fixed for the opening of the session of the Health Assembly, the names of its representatives, including all alternates, advisers and secretaries.

"(b) The credentials of delegates of Members and of representatives of Associate Members shall be delivered to the Director-General, if possible not less than one day before the opening of the session of the Health Assembly. Such credentials shall be issued by the Head of State or by the Minister for Foreign Affairs or by the Minister of Health or by any other appropriate authority" (emphasis added).17

17WHO, Basic Documents, 1996, p. 120. WT/GC/W/72 Page 10

Under this rule a practice has evolved to accept credentials from duly accredited missions to the UN as credentials issued by "any other appropriate authority". Such credentials can be signed by the Ambassador or Chargé d'Affaires or be a Note Verbale showing the seal of the Mission.

26. World Intellectual Property Organization (WIPO) - Geneva (UNSA)

WIPO does not have a separate accreditation procedure. The usual practice is that incoming Ambassadors/Permanent Representatives pay a courtesy call on the Director-General of WIPO, but no formal steps or documentation is involved. With respect to representation at the General Assembly or any other bodies of WIPO, Rule 7 (4) of the General Rules of Procedure provides as follows:

"Each delegate or alternate shall be accredited by the competent authority of the State which he represents. The Director General shall be notified of the appointment of delegates and alternates in a letter, note or telegram, issuing preferably from the Ministry of Foreign Affairs".18

In case of a diplomatic conference preparing the adoption of a new legal instrument, a Credentials Committee is set up which examines the acceptability of credentials. In practice only the Head of State or Government or the Minister for Foreign Affairs or a person presenting credentials signed by the Head of State or Government or the Minister for Foreign Affairs will be found to have full powers to sign the legal instrument. However, in order to participate in such diplomatic conference, a letter of accreditation signed by the local Mission is in practice found to be sufficient.

27. World Meteorological Organization (WMO) - Geneva (UNSA)

WMO has no accreditation of its own for diplomatic representatives. However, a peculiar situation exists in relation to the WMO. Contrary to other organizations, its Constitution provides for "Permanent Representatives". These are the directors of the national meteorological services who are expected to act on technical matters between sessions of the WMO Congress which is held only once every four years. Since most of the diplomatic representatives in Geneva are also accredited to the WMO, that organization has two sets of permanent representatives.19

18WIPO Publication, No. 399 (FE) Rev. 3.

19See Kaufmann, J., Conference , An introductory analysis, A.W. Sijthoff, Leyden, 1968, p. 123.