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PERMANENT COUNCIL OF THE OEA/Ser.GORGANIZATION OF AMERICAN STATES CP/CSH-680/05 rev. 1

1April 2005COMMITTEE ON HEMISPHERIC SECURITY Original: English

PROPOSED DOCUMENTS FOR DEFINING THE RELATIONSHIP BETWEEN THE ORGANIZATION AND THE INTER-AMERICAN DEFENSE BOARD:

SPECIALIZED ORGANIZATION OPTION AND ENTITY OPTION

(Presented by the Chair of the Committee on Hemispheric Security, at the meeting held on March 29, 2005, and revised in accordance with observations

received from the Member States during and immediately after that meeting)

E X P L A N A T O R Y N O T E

This document, first presented on March 29, 2005 to the Committee on Hemispheric

Security, has been revised and the amendments appear in this text, CP/CSH-680/05 rev. 1.

These major changes are as follows:

1. Each reference to the function of the Board has been changed to read "providing

technical advice on and consultancy services in military, defense, and related [similar]

matters"1. This change is reflected in the Summary Explanation, the Draft Agreement and

the Draft Statutes, and the Section Analyses. This formula text is a result of further

conversations with the delegations and attempts to accommodate their concerns. It is used

throughout the document.

2. The provisions in Article 3.2 of the Draft Statutes emphasizing the principles of

civilian oversight and democratic formation of authorities have been moved from that

Article, which concerns limitations on the scope of the Board's activities, to a new Article 1.3

on the Nature of the Board, where they more logically belong.

3. Articles 3.1 and 3.2 of the Draft Statutes have been amended by adding alternative

subparagraphs indicated by a “bis” and which would permit the Board to provide technical

advisory and consultancy services to Member States upon their request, as long as the Board

promptly informs the Permanent Council of any such requests received and the advice and

services provided. This alternative was suggested by an ALADI delegation in the interest of

building consensus on this issue and with the idea that the reporting obligation would provide

sufficient transparency to obviate prior concerns over the Board’s provision of advisory and

consultancy services to individual States.

4. Draft Article 27 of the Draft Statutes, and similar language in Article 14.2, which

referred to the possibility of establishing a fund supported by obligatory contributions, was

1 At least one Member State has objected to the term “related”. It has been suggested that the word “similar” in brackets be used as a possible consensus-building alternative.

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eliminated in response to comments that the establishment of such a fund was simply

unacceptable under any circumstances.

5. The provisions on the participation of observers other than Permanent Observers in

Article 6 of the Draft Statutes were redrafted to incorporate concepts from the Guidelines for

the Participation of Civil Society Organizations in OAS Activities and the recently adopted

new Statute of the Inter-American Children’s Institute (IIN), to assure that the same kinds of

concerns raised about observers by Member States when that IIN Statute was adopted would

be addressed here and would not become an area of possible controversy in the discussion of

the new IADB Statutes.

6. In the Draft Statutes a provision was added to Article 2 on Purposes to reflect the

need for the Board to take into account in its work the needs of smaller states, as requested

by a large majority of the delegations who filed comments.

7. Several inadvertent inconsistencies in parts of the text were called to our attention by

a delegation and duly corrected. They arose largely in the Section Analysis describing the

Secretariat leadership positions.

8. The Section Analysis on Privileges and Immunities of the Draft Statutes was

enriched to clarify concerns raised by the host country. Similarly, the Section Analysis was

expanded to provide more detailed reference to the corresponding written presentations of the

Member States, particularly in the Section Analysis for Article 2. Finally, more frequent

reference to the legal basis for the Entity option was provided in the Section Analysis.

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SUMMARY EXPLANATION

Considering the mandate to the Committee on Hemispheric Security to conclude its analysis of the juridical and institutional relationship between the Organization of American States and the Inter-American Defense Board [AG/RES. 1998 (XXXIV-O/04)], and bearing in mind the many fruitful conversations on this subject between this Chair and the Permanent Representatives to the Organization, I have prepared this document which contains proposals for the texts of the documents that would be required to establish the Board as a Specialized Organization or as an Entity, as the Member States may decide. Special care has been taken to ensure to reflect in these documents the consensus reached on the civilian oversight and democratic composition of the Board, election of its officers, and its scope of function.

With respect to the functions of the Board, the proposed documents incorporate those recognized by the General Assembly in its resolution AG/RES. 1240 (XXIII-O/93), as providing advice and consultancy services of a “technical-military character which in no case may have an operational nature”. It also includes technical assistance on mine-clearing programs based on General Assembly resolutions AG/RES 1343 (XXV-O/95); AG/RES 1413 (XXVI-O/96); AG/RES. 1498 (XXVII-O/97); AG/RES. 1568 (XXVIII-O/98); AG/RES. 1641 (XXIX-O/99); AG/RES. 1751 (XXX-O/00); AG/RES. 1793 (XXXI-O/01); AG/RES. 1875 (XXXII-O/02), AG/RES. 1878 (XXXII-O/02); AG/RES. 1995, and AG/RES. 2002 (XXXIV-O/04).

The Board also has functions in the area of confidence- and security-building measures (CSBMs). In that regard, the General Assembly has requested that the Board: prepare studies, prepare and update inventories of CSMBs in Member States and of CSBMs in other regions, prepare draft guidelines for the standardized presentation of reports on the application of CSBMs by Member States, and establish a database of CSBMs. These proposed Statutes make specific reference to those functions.2/

The General Assembly has also assigned to the IADB a task related to small arms and light weapons in its resolution AG/RES. 1997 (XXXIV-O/04). In that regard, it has requested that the Board prepare, with the assistance of the Inter-American Defense College (IADC), a handbook for member states on best practices for identification, collection, management, security and destruction of stockpiles of small arms and light weapons. The proposed Statutes reconfirm the assignment of that function to both the Board and the IADC.

In both 2002 and 2003, through its resolutions AG/RES. 1879 (XXXII-O/02), AG/RES. 1967 (XXXIII-O/03), the General Assembly tasked the IADC “to provide, when asked to do so, technical advice to the Committee on Hemispheric Security and member states on preparing defense policy and doctrine papers.” The proposed Statutes reconfirm the assignment of that function to both the Board and the IADC.

2 AG/RES. 1409 (XXVI-O/96), AG/RES. 1494 (XXVII-O/97), AG/RES. 1566 (XXVIII-O/98), AG/RES. 1623 (XXIX-O/99), AG/RES. 1645 (XXIX-O/99), AG/RES. 1744 (XXX-O/00), AG/RES. 1801 (XXXI-O/01), AG/RES. 1879 (XXXII-O/02), AG/RES. 1967 (XXXIII-O/03), and AG/RES. 1996 (XXXIV-O/04). It should be pointed out that the IADB was initially requested to inventory CSBMs of a military nature only, but that specific reference has not been mentioned since the resolution of 1998.

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I. THE DOCUMENTS

The documents attached include an Agreement, which is only necessary if the Member States decide in favor of the “Specialized Organization” option, and draft Statutes. The Draft Statutes were first prepared for the Specialized Organization. Nonetheless, bracketed shaded sections have been added to be used in the event the Member States decide to approve the “Entity” option instead.

The bracketed shaded sections are adapted from key provisions from the Agreement which related largely to cooperation with other organizations and the OAS General Secretariat. We moved them to the Statute to be used if the Entity option is chosen because there is no resolution of the General Assembly or Charter provision requiring an Agreement between the Organization and an Entity, as there is with regard to Specialized Organizations, and those provisions are important.

We have also attached three alternative model resolutions for consideration by the General Assembly at its next Regular Session. The first would establish the Board as a Specialized Organization. The second would authorize the Permanent Council to adopt the Statute recognizing the IADB as an Entity, and to place it into force immediately, ad referendum of the General Assembly. The third would have the General Assembly designate the Board an Entity and adopt its Statute at its upcoming regular session.

The Draft Agreement and Draft Statutes both contain an accompanying detailed Section Analysis. Nonetheless, a brief summary follows below of both of these, and also of the Draft Resolution:

A. The Agreement

The Agreement is based largely on the requirements established in “Standards for the Implementation and Coordination of the Provisions of the Charter Relating to the Inter-American Specialized Organizations, adopted by the General Assembly in Resolution AG/RES. 87 (II-O/72) (“AG/RES. 87 Standards”), as well as existing agreements between the OAS and other Specialized Organizations – specifically the Inter-American Institute for Cooperation on Agriculture (“IICA’), the Pan American Institute for Geography and History (“PAIGH”), and the Inter-American Children’s Institute (“IIN”). Of course, the provisions taken from those agreements have been adapted, when necessary, to conform to the areas of expertise and nature of the Board.

Article I recognizes the Board as a Specialized Organization of the OAS, with technical autonomy in its limited area of competence – providing technical advice on and consultancy services in military, defense, and related [similar] matters,3 but at the same time, the Board is obligated to take into account and follow the decisions of the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, and the Permanent Council. This Article also makes very clear the limitations of the Board's scope of function, including its non-operational nature. It also recognizes the General Assembly’s authority under Article 53 of the Charter and Resolution XXXIV of the Ninth International Conference of American States to modify the Board’s Statutes and to abolish it. This arrangement firmly establishes the principle of civilian authority over the Board.

3 This formula text is a result of conversations with the delegations and attempts to accommodate their concerns. It is used throughout the document. At least one Member State has objected to the term “related”. It has been suggested that the word “similar” in brackets be used as an alternative.

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In Article II, the Parties recognize the legal supremacy of the Statutes approved by the General Assembly. It provides that the Board shall have no functions other than those stated in the Statues, or as otherwise assigned by the General Assembly

The Board has occupied facilities owned by the OAS General Secretariat for more than fifty years. Article III recognizes that tenancy, but further provides that it is subject to the will of GS/OAS and the Board’s agreement to continue funding repairs, maintenance, and other related costs.

Article IV affirms the obligation of the Board to report annually to the General Assembly. It also sets out a road map for correspondence between the Board and other OAS organs.

One of the primary purposes of the Agreement, as established in the AG/RES. 87 Standards, is to establish guidelines for cooperation and coordination between each Specialized Organization and other OAS organs. Drawing richly from corresponding articles of the agreements between the OAS and its other Specialized Organizations, Chapter V does just that.

Chapter VI establishes that the Board is solely responsible for obtaining its own financial resources. Nonetheless, it recognizes the possibility of obtaining an annual appropriation from the OAS Regular Fund, and it establishes a timetable and procedure for submitting a proposal for that purpose consistent with present practice. This Chapter also establishes that the Board will not have a preferred status vis-à-vis any other organs in making allotments from its Regular Fund appropriation in the event of a cash flow shortage. Moreover, Chapter VI provides that any funds received by the Board from the Regular Fund will be subject to the audit provisions established in the OAS General Standards, and the cost of those audits will be paid by the Board out of those funds.

Chapter VII on the Board’s staff establishes that the Board’s personnel will not be the staff of the General Secretariat. Nonetheless, the possibility of cross secondments is recognized, as well as the possibility for IADB staff to join the OAS pension plan, a right they currently enjoy. Provisions are also set out regarding the use of the OAS Travel Document by IADB staff.

The Agreement concludes with a disposition on amendment and termination. As with the other agreements between the Specialized Organizations and the OAS, this Agreement may be modified by the Secretary General and the Board’s chief executive officer, with the prior authorization of their respective governing bodies – the OAS General Assembly in the case of the OAS; the Council of Delegates in the case of the Board. As for termination, only the General Assembly or the Council of Delegates are authorized to terminate the Agreement.

B. Statutes

The Statutes are substantively based largely on the February 24 th 2004 version drafted by the Board. We eliminated the preamble in that earlier draft because Statutes do not usually contain one. We then went on to restructure the Statutes into thematic chapters. There are eight: I. Nature, Purpose and Functions; II. Participation (Members, Permanent Observers, Observers, and Guests); III. Structure; IV. The Council of Delegates (Purpose, Functions, Delegations, Meetings, Quorum and Voting; Chair and Vice Chair); V. The Secretariat (Structure and Functions, Director General, Sub-secretariats, Human Resources); VI. The Inter-American Defense College; VII. Financial Resources; and VIII. Miscellaneous Provisions (Privileges and Immunities; Anti-discrimination; Internal Law: Amendment of Statutes).

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Chapter I establishes the IADB as a Specialized Organ or Entity of the OAS. As stated above, the Statutes are basically identical for the Entity Option and for the Specialized Organization option. The only difference is the bracketed shaded sections will be used if the Entity Option is chosen, and the term “Specialized Organization” in this Chapter and in other provisions referring to the nature of the IADB will be changed to “Entity” and apply equally to the Board whether it is a Specialized Organization or Entity. Once that decision is taken, this Chapter will be amended accordingly.

Article 1 recognizes the Board’s technical autonomy in “providing technical advice on and consultancy services in military, defense, and related [similar] matters” and, like the Agreement, requires the Board to follow the recommendations of the OAS General Assembly, the Meeting of Consultation, and the Permanent Council within their respective areas of competence. Moreover, it reiterates that the Board, as reconstituted under these Statues, is based on the principles of civilian oversight and democratic formation of its authorities. Article 2 sets out the purpose and recognizes that the Board, in carrying out its purposes, must take into account the needs of smaller States, as expressed by a large majority of the delegations.

Article 3 of this Chapter establishes the two basic functions of the Board: (a) to serve as the specialized advisory organ of the OAS for “providing technical advice on and consultancy services in military, defense, and related [similar] matters,” and (b) to develop and provide opportunities for advanced academic study of military and defense-related subjects, the Inter-American System, and related academic disciplines for military and civilian governmental officials. Article 3 of this Section goes on to list a number of specific functions related to the purposes expressed in the preceding Article, as well as limitations.

Chapter II on Members provides that all OAS Member States that request membership will become members. It goes on to set out the conditions under which membership may be suspended and provides for voluntary withdrawal as well. Suspension is automatic for those States suspended by the OAS General Assembly under Article 9 of the OAS Charter or Article 21 of the Democratic Charter. Also, the Council of Delegates, as currently permitted under its present Regulations, may suspend a Member by a two thirds vote of its Members for “failure to attend meetings of the Council of Delegates in accordance with the requirements of the Council’s Rules of Procedure or to comply with other requirements established by the Council of Delegates.”

The OAS Permanent Observers and OAS Member States which are not Members of the Board shall become Permanent Observers of the Board upon request. Other UN Member States states may become Permanent Observers, provided they satisfy requirements established by the Board, pursuant to the Permanent Council’s Resolution CP/RES. 407 (572/84) on Permanent Observers.

Chapter III of these Statutes reduces the seven organs proposed in an earlier version of the February 2004 draft Statute prepared by the Board to three: – the Council of Delegates; the Secretariat; and the College. The Council of Delegates described in Chapter IV is the representative organ of the Board. Under the principal of the juridical equality of states set out in the Charter, each Member delegation has one vote. The Chief of each delegation must be either a flag officer or captain or colonel, or a civilian official of comparable authority and knowledge related to military, defense, and related [similar] matters. . The principal functions of the Council involve: (a) establishing policies, within the guidelines established by the General Assembly, Meeting of

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Consultation, and Permanent Council, and (b) oversight of the implementation of those policies and of the management of the Board and the College. Those functions are more fully described in Article 11 of the Statues.

The formal meetings of the Council of Delegates are still referred to as Assemblies. Nonetheless, for quorum and voting requirements, these Statues implement those rules recently adopted by the Permanent Council in its latest amendments to its Statute and Rules. The reduction of the quorum for a meeting from two thirds of the Members to one third, as proposed in the attached draft Statues, provides for greater flexibility and agility for meeting. Voting on a number of serious questions, including those involving suspension, removal of officers, and financial matters shall require a qualified majority vote of two thirds of all the Members. All other decisions shall require a majority vote of the Members. As in the Permanent Council’s Statute and Rules of Procedure, this proposed Statute applies more flexible rules for the operations of committees, subcommittees, and working groups.

Article 15 of Chapter IV provides for the office of Chair of the Council and the office of Vice Chair. The statutes require that the Chair and Vice Chair be elected by the Council of Delegates in accordance with the principle of rotation and equitable geographical distribution, consistent with the standards set out in the AG/RES 87 Standards. They may be either flag officers or civilian officials having similar authority and knowledge of the Board{s area of competence.

Chapter V of the Statutes describes the Secretariat and its functions. It establishes the position of Director General, as Chief Executive Officer of the Secretariat and legal representative of the Council. The Director General is elected by the Council for up to a four year term, and must be a Flag Officer or Civilian Official of an IADB Member State with comparable authority and knowledge of military, defense, and related [similar] matters. The Secretariat is organized into two Sub-secretariats, each headed up by a Director elected by the Council of Delegates – the Sub-secretariat for Advisory Services, to provide technical advisory services principally to the Council of Delegates; and the Sub-secretariat of Administrative and Conference Services, to do everything else. The two Directors are directly responsible to the Director General Both positions have been democratized. That is, the Directors are elected by the Council. They may be either ranking military officers or civilian officials with similar authority and knowledge of the Board{s areas of competence, and assigned to the Board by their country to the Board.

Chapter VI provides that the College is separate from the Secretariat. Its Director is elected by the Council of Delegates, as was recommended by the Board in its February 2004 draft Statutes. The College is responsible for working out arrangements with the headquarters country for facilities, supplies and services, and must coordinate its administrative operations with the Secretariat through the Director General.

Both Chapters V and VI include provisions on human resources. Together with the Agreement, they provide that the staff of both the Secretariat and the Board will not be the staff of the General Secretariat. Rather, like the majority of the Specialized Organizations, the Board will be responsible, as it always has been, for retaining and regulating its own staff. The Statutes, however, provide certain parameters common to the inter-American system and required under the AG/RES. 87 Standards. That is, the staff must be selected on the basis of objective standards – competence, efficiency, and integrity, taking into account the need for a wide geographical representation. Also, there are provisions similar to those in force in other OAS organs prohibiting conflicts of interest and

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on accountability. The section on human resources further contains provisions which recognize that part of the staff of the IADB is made up of persons on secondment from the IADB members and more regular civilian employees. Reference is also made to the contracting of human resources through performance contracts and the authority of the Board to do so.

Chapter VII treats the issue of financial resources. It recognizes the annual contribution which the IADB has enjoyed for more than fifty years from the Regular Fund Program-Budget of the OAS, but specifies that the OAS is under no obligation to continue providing it. This Chapter describes the voluntary funds contributed by individual members, and provides for their deposit in both specific funds and trust funds in accordance with donor specifications and other regulations established by the Council of Delegates. Chapter VII further requires the Board to adopt and enforce financial rules reflecting commonly acceptable standards so as to assure adequate controls and transparency in the Board’s financial management.

Chapter VIII, on Miscellaneous Dispositions, which becomes Chapter IX if the Entity option is chosen, contains a number of provisions on privileges and immunities, which are important for the Board’s effective performance of its functions. One Article recognizes the privileges and immunities already accorded the Board and its delegations by the headquarters country. Another states the general rule that the privileges and immunities enjoyed by the Board in the Member States will depend on the agreements that the OAS and the Board conclude with the Member States in that regard. There is also a provision in this Chapter that bars discrimination on race, creed, and gender, as there is in the Charter and in the basic documents of other OAS organs.

Chapter VIII in brackets and shaded is to be included only if the Entity option is chosen. It contains dispositions on the relationship between the Board and other OAS organs, particularly with regard to cooperation. These provisions are adapted from Articles III-V and VII of the Agreement. It is important that they be included in the Statute for the Entity because there will be no Agreement if the Entity option is chosen.

Chapter VIII (alternatively IX as noted above) contains a final section on the internal law of the Board and the process for amending its Statutes. The section on internal law reinforces the principle of civilian control of the Board. It establishes that at the top of the legal pyramid is the OAS Charter, followed by the Resolutions of the General Assembly (of which the Statutes is one), next by the decisions of the Meeting of Consultation, and next by the resolutions of the Permanent Council, within its sphere of competence regarding the Board. Then come in descending order of authority the resolutions and other decisions of the Council of Delegates, followed by the administrative issuances promulgated by the Director General and the Director of the College, each within its sphere of competence. As for amending the Statutes, the final article in Chapter VIII specifies that they can be amended only by a Resolution of the General Assembly. The Permanent Council, however, may propose amendments for the consideration of the General Assembly, either upon its own initiative or upon the recommendation of the Council of Delegates.

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C. The Resolution

We have presented three possible model resolutions: The preamble for all three is essentially the same, and lays the foundation for recognizing the Board as a Specialized Organization within the OAS. First, it notes that both the OAS and the Board are public international organizations with headquarters in Washington, D.C., and have their own legal personality. Reference is made to the areas of common interest of the two organizations, their common origins in the Ninth International Conference of American States, and the need to establish within the board the “principle of civilian oversight of the armed forces within the context of representative democracy.” The preamble cites the resolutions of the General Assembly which charged the Permanent Council with the mandate of recommending structural changes to modernize the Board for the purpose of clarifying its legal relationship to the OAS and establishing as the basis for that relationship “the principle of civilian control and the democratic formation of its authorities.” It also cites the supporting provisions from the 2003 Declaration on Security in the Americas. Finally, the preamble reviews the basis of the General Assembly’s legal authority for adopting new Statutes for the Board, and, in the case of the Specialized Organization option, the requirement of an Agreement between the Organ and the OAS as a condition for recognizing the Board as a Specialized Organization of the OAS.

The first model is for use if the General Assembly adopts the “Specialized Organization” option. Its first operative paragraph authorizes and directs the Secretary General to sign the basic Agreement between the Board and the OAS. This Agreement is a legal sine qua non for the Board’s status as an OAS Specialized Organization.

The second operative paragraph expressly recognizes the Board as a Specialized Organization. Formal recognition is also a necessary legal requirement under Chapter XVIII of the Charter for obtaining Specialized Organization status. This provision, however, makes the entry into force of this formal recognition subject to the signing of the Agreement by the Board.

The third operative paragraph approves the Statutes. They do not spring into effect, however, until the Agreement is signed. All therefore, is subject to the Board’s signature of the Agreement.

The fourth operative paragraph is included as a possible incentive for the Board to sign the Agreement promptly. If it does not do so, the Council will be authorized (but not required) to discontinue the Board’s financing from the Regular Fund and evict it from the Casa del Soldado.

The Second Model is for use if the Entity option is chosen. It authorizes the Permanent Council to continue working with the Board on the Statute, to adopt the Statute thereby recognizing the IADB as an OAS Entity, and to place the Statute into force immediately ad referendum of the General Assembly’s subsequent consideration and approval.

The Third Model is also for the Entity option. But it is different because rather than giving the Permanent Council authority to keep working on the Statute and approve it ad referendum to subsequent General Assembly action, it would adopt the Statute and put it into force once and for all at the General Assembly.

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II. CONCLUSION

These documents – the Draft Agreement, Statutes, and Resolutions – have been prepared with the sole objective of advancing the work of the Committee. Informal consensus has been reached regarding the Board’s mandate and functions, and it is hoped that these proposals will facilitate final recommendations to be forwarded to the Permanent Council for consideration by the General Assembly.

Carmen Marina Gutiérrez SalazarPermanent Representative of Nicaragua to the OASChair of the Committee on Hemispheric Security

April 1, 2005

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DRAFTBASIC AGREEMENT

BETWEENTHE ORGANIZATION OF AMERICAN STATES

ANDTHE INTER-AMERICAN DEFENSE BOARD

THE PARTIES, the Organization of American States (“OAS” or “the Organization”), and the Inter-American Defense Board (“IADB” or the “Board”),

Bearing in mind that the Parties are both public international organizations within the Inter-American System, having independent legal personality and offices in Washington, D.C.;

Recalling that the Inter-American Defense Board was created by resolution of the Third Meeting of Consultation of Ministers of Foreign Affairs of the American Republics in 1942, and subsequently strengthened by Resolutions VII and XXXIV of the Ninth International Conference of American States, the same Conference that gave birth to the OAS and its 1948 Charter;

Taking into account that the Board and the OAS share common objectives under the OAS Charter in guaranteeing the peace and security of the hemisphere and the respect for the principle of civilian oversight of the armed forces within the context of representative democracy;

Recalling that by Resolution AG/RES. 1240 (XXIII-93), the General Assembly "reiterate[d] the need to define the legal-institutional relationship between the Inter-American Defense Board and the Organization of American States . . . .," and in Resolution AG/RES. 1848 (XXXII-O/02) it directed the Permanent Council "to examine the relationship between the OAS and the IADB and make recommendations to the General Assembly and the IADB for modifying the Board's basic structure and instruments to the extent necessary to clarify and obtain consensus on its status with respect to the OAS, including the principle of civilian oversight and the democratic formation of its authorities.";

Bearing in mind that the General Assembly is the supreme organ of the OAS authorized under Article 54 of the Charter to "decide the general action and policy of the Organization, determine the structure and functions of its organs . . . [and] to establish measures for coordinating the activities of the organs, agencies, and entities of the organization among themselves, and such activities with those of the other institutions of the inter-American system;"

Considering that pursuant to Article 124 of the Charter, the General Assembly determines which intergovernmental institutions of the inter-American system are to be designated Specialized Organizations of the OAS under Article 53(h) and Chapter XVIII of the Charter;

Further considering that Article 128 of the Charter provides that the relations between the Specialized Organizations and the OAS are set out in agreements between them and the Secretary General, pursuant to the General Assembly's authorization, and Resolution AG/RES. 87 (II-O/72) sets out guidelines for those agreements;

Taking into account that the General Assembly has designated the Board a Specialized Organization under the Charter and approved its Statutes, subject to the entry into force of an agreement between the IADB and the OAS defining their relationship pursuant to Article 128 of the Charter,

SECTION ANALYSIS

These recitals establish the historical and legal backdrop for this agreement. The first two identify the Parties and reaffirm that they are both public international organizations in the Inter-American System with headquarters in Washington, D.C., and that they both have the requisite legal personality to enter into a binding agreement. Public international organizations are international organizations whose members are governments, as is the case with the OAS and the Board.

The next two recital paragraphs set out the common parentage of the OAS and the Board. They also highlight the common commitment of the two organizations towards peace and security in the hemisphere.

The fifth recital refers to the General Assembly’s mandate to the OAS Permanent Council to examine the relationship between the two organizations for the purpose of recommending to the General Assembly possible changes in the structure and functions of the Board. It states that the reason for the mandate is the need to clarify the legal relationship between the Board and the OAS, together with an interest in providing for civilian oversight of the Board and a more democratic process for the selection of its ranking officials.

The next recital makes reference to the General Assembly’s authority under the Charter to determine the structure and functions of all OAS organs, to coordinate their activities, and to designate organs in the Inter-American System as Specialized Organizations of the Organization. The penultimate recital paragraph notes that both the Charter and the Standards for Specialized Organizations adopted by the General Assembly’s Resolution AG/RES. 87(II-O/72) require that the general parameters of the relationship between Specialized Organizations and the OAS be established in agreements between those Organizations and the OAS. The final recital paragraph refers to the designation of the Board as a Specialized Organization, which presumably will occur at the next General Assembly. That designation, as stated in that paragraph, will not go into force until the Agreement is signed.

AGREE:

ARTICLE ISTATUS WITHIN THE OAS

1.1 Upon the signing of this Agreement, the IADB shall be a Specialized Organization of the OAS under Chapter XVIII of the OAS Charter, registered in accordance with Article 1(b) of the Standards for the Implementation and Coordination of the Provisions of the Charter Relating to the Inter-American Specialized Organizations established under Resolution AG/RES. 87 (II-O/72).

1.2 Upon the request of the Permanent Council or upon its own initiative, the OAS General Assembly may abolish the Board by a vote of two thirds of the OAS Member States or modify its statutes in accordance with Article II below.

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1.3 The Board shall enjoy the fullest technical autonomy for providing technical advice and consultancy services in military, defense, and related [similar] matters and educational opportunities on such matters, which at no time will be of an operational nature, but must take into account and follow the recommendations made by the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs (“Meeting of Consultation”), and the Permanent Council within their respective areas of competence.

SECTION ANALYSIS

Article 1 defines the legal status of the Board as a Specialized Organization within the OAS. Section 1.1 provides that it will have that status once the Agreement is signed. Of course, it presumes that the General Assembly has passed a Resolution according that status to the Board, subject to the signing of the Agreement, and which will spring into force once the Agreement is signed.f

Section 1.2 affirms the organizational supremacy of the General Assembly over the Board. It provides that the General Assembly, on its own or upon the recommendation of the Permanent Council, may abolish the Board or modify its statutes. This provision is based on Article 54 of the Charter which recognizes the General Assembly as the “supreme organ” of the Organization and gives it the authority to determine the structure and function of OAS organs, which include the Specialized Organizations.

The authority to abolish the Board referenced in this Section 1.2 is also based on Resolution XXXIV of the Ninth International Conference of American States, which in 1948 provided for the continuation of the Board within the Inter-American System. That Resolution provided that the Board “shall continue to act as the organ of preparation for collective self-defense against aggression until the American Governments decide by a two-thirds majority to consider its labor terminated.” (Emphasis added.) As the successor institution to the International Conferences of American States in which foreign ministers meet with plenipotentiary powers to take decisions on hemispheric matters, the OAS General Assembly is the appropriate forum within the inter-American System for taking that decision.4 It can only do so, however, by a two thirds majority vote of its Members, as we have provided in Section 1.2.

Section 1.3 is almost identical to Section 1.2 of the Statutes, and the commentary on Section 1.2 of the Statutes applies equally to this Section 1.3 of the Agreement. Briefly, these two Sections are based on Article 126 of the Charter and Article 5 of the Standards for the Implementation and Coordination of the Provisions of the Charter Relating to the Inter-American Specialized Organizations, adopted by the General Assembly in Resolution AG/RES. 87 (II-O/72) (“the AG/Res. 87 Standards”). Those two Articles are virtually identical and state: “The Specialized Organizations shall enjoy the fullest technical autonomy, but they shall take into account the recommendations of the General Assembly and of the Councils, in accordance with the provisions of the Charter.”

4 Interestingly enough, the General Assembly may not authorize the dissolution of all OAS organs because the final paragraph of Article 53 provides that the General Assembly “must exercise its powers in accordance with the provisions of the Charter and of other inter-American treaties.” Thus, for example, the General Assembly cannot abolish the Permanent Council or the General Secretariat because they are expressly created under the Charter and their basic structure and functions are specified therein. Similarly, it cannot dissolve IICA or the Inter-American Human Rights Commission and the Inter-American Human Rights Court because they were established under inter-American treaties.

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Due to the overriding need for civilian control of the Board and the inherent ambiguity of the term “taking into account”, we have specifically provided in Section 1.3 that in addition to “taking into account” the recommendations of the General Assembly and of the Councils, the Board must “follow” them as well. Nonetheless, like other Specialized Organizations, the Board remains technically autonomous within its area of competence. That area of competence is defined as “providing technical advice and consultancy services in military, defense, and related [similar] matters and educational opportunities on such matters.” Thus, the Board’s technical autonomy is guaranteed only with regard to its advisory functions and services in those areas. The reason for the selection of the formula language ““providing technical advice and consultancy services in military, defense, and related [similar] matters and educational opportunities on such matters” is set out in the Section Analysis of Section 1.2 in the Draft Statutes.

ARTICLE IISTATUTES

2.1 The structure and functions of the Board are established in its Statutes approved by the OAS General Assembly, and the Board is bound by those Statutes.

2.2 The Board shall have only those functions which are stated in its Statutes or otherwise expressly entrusted to it by the OAS General Assembly.

2.3 The Statutes may be modified only by the OAS General Assembly, as provided therein.

SECTION ANALYSIS

Section 2.1 of Article II reaffirms that that the Board is bound to follow its Statutes, which establish its structure and functions and have been approved by the General Assembly. Section 2.2 provides that the Board has no functions other than those set out in its Statutes or subsequently entrusted by another Resolution of the OAS General Assembly.5 This Section is analogous to the second paragraph of Article I of the OAS Charter, which provides that the OAS “has no powers other than those expressly conferred upon it by this Charter. . . .” Finally, Section 2.3 reaffirms that only the General Assembly may amend the Statutes, and it refers the reader to the process of amendment as described in those Statutes.

5 A Resolution of the General Assembly giving the Board another function could, in effect, legally amend the Statute because the Statute itself is no more than a General Assembly Resolution.

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ARTICLE IIIHEADQUARTERS

3.1 The OAS General Secretariat (“GS/OAS”) shall allow the IADB to occupy and operate as its headquarters the property known as “Casa del Soldado,” currently owned by GS/OAS, located at 2600 16th St., N.W., Washington, D.C., and included as an OAS property under the Headquarters Agreement between the OAS and the United States of America, for as long as GS/OAS owns that property, subject to the Board’s agreement to assume responsibility for repairs and maintenance of the property, together with other costs related to its use, and subject to the needs of GS/OAS.

SECTION ANALYSIS

For more than fifty years, the Board has occupied a building owned by the OAS General Secretariat (“GS/OAS”) on Sixteenth Street and known as the “Casa del Soldado”. This is an historic structure built around the same time as the OAS Main Building. In 1986, both the Board and the Secretariat contributed to the costs of constructing a ten thousand square foot modern addition to the building and renovating parts of the original structure. Like the OAS Main Building, the historic part of the Casa del Soldado houses a decorative plaster ballroom and offices. The newer addition contains conference facilities and more modern offices, as well as limited parking facilities. Because the Casa del Soldado belongs to GS/OAS, it is protected under Article I of the Headquarters Agreement between the OAS and the United States of America and constitutes, under Annex A of that Agreement, part of the OAS Headquarters.

This Section recognizes the IADB’s occupancy of the Casa del Soldado. Moreover, it reiterates the de facto situation that has existed during that last fifty years with respect to that occupancy. That is, the IADB occupies those premises at the pleasure of the GS/OAS and subject to the understanding that the Board’s willingness to assume responsibility for repairs, maintenance, and other costs related to its use of the property. The continuation of the Board's occupancy shall depend on whether the GS/OAS continues to own the premises, GS/OAS’s other needs, and the Board’s compliance with the responsibility it has assumed. The Board’s tenancy shall not interfere with the right of the OAS to sell or lease the Casa del Soldado, or use all, or part of it, for other purposes

ARTICLE IVOFFICIAL REPORTS AND CORRESPONDENCE

4.1 Each year, the Board shall send its Annual Report on its activities and budget to the General Assembly, though GS/OAS, in accordance with such requirements as established by the OAS General Assembly and Permanent Council.

4.2 The Board shall prepare and send to the other organs of the OAS such other reports as they may request on its activities.

4.3 All official correspondence from the IADB to the OAS General Assembly, the Meeting of Consultation, the OAS Permanent Council, and GS/OAS shall be addressed to the OAS

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Secretary General. The correspondence from the IADB to all other OAS organs shall be addressed to the chief executive officers of those organs.

4.4 All official correspondence from OAS and its other organs to IADB shall be addressed to the Chief Executive Officer of the Board, currently known as the “Director General”.

SECTION ANALYSIS

Articles 27 of the AG/RES. 87 Standards and Article 127 of the Charter require the Specialized Organizations to send their annual reports, budgets, and financial statements to the General Assembly each year. Section 4.1 reaffirms that obligation for the Board.

Part VIII of the AG/RES. 87 Standards sets out a number of provisions to encourage coordination and cooperation between the organs of the Organization. Section 4.2 is intended to provide, in part, for such coordination by encouraging the exchange of reports between them.

Sections 4.3 and 4.4 are intended to assure that correspondence between the organs of the Organization and the Board reaches the appropriate destination. The provision in Section 4.3 requiring that correspondence from the Board to the OAS General Assembly, Meeting of Consultation, and Permanent Council be directed first to the Secretary General reflects article 28 of the AG/RES. 87 Standards, which provides that all such correspondence be directed through the General Secretariat.

ARTICLE VCOORDINATION

5.1 The programs and activities of the IADB shall avoid duplication of effort and expenditures and shall be complementary to the activities carried out by the other OAS organs.

5.2 To further coordination with other OAS organs, the Board shall participate as a member of the Committee to Coordinate Cooperation Programs of the Inter-American System and shall comply with its recommendations.

5.3 The Board shall regularly exchange information with the GS/OAS, the OAS Permanent Council, and the corresponding subsidiary organs of the Permanent Council, the Inter-American Committee against Terrorism, the Inter-American Drug Abuse Control Commission, the Department of Multidimensional Security, and other OAS organs and GS/OAS dependencies engaged in matters of mutual interest. Similarly, those OAS organs shall regularly exchange information of mutual interest with the Board. Information exchanged shall include, for example, notice of upcoming meetings with their agendas, technical materials of mutual interest, copies of draft resolutions, tentative meeting agendas, and final meeting reports.

5.4 The Chair of the Board’s Council of Delegates, the Vice Chair, the Director General

of the Board Secretariat, and the Director of the Inter-American Defense College may attend sessions of the OAS General Assembly and meetings of the other OAS organs and entities with the right to speak, in accordance with the applicable rules of procedure. Similarly, the OAS Secretary General, the Chair of the OAS Permanent Council, and other ranking officials of other OAS organs may attend

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the Assemblies and other public meetings of the Board’s Council of Delegates with the right to speak, in accordance with the applicable rules of procedure.

5.5 The General Assembly, the OAS Councils, and the Board may formulate recommendations among each other concerning the inclusion of items on the agenda of their respective meetings and conferences, to the extent permitted under the applicable rules of procedure.

5.6 The Board and other OAS organs shall exchange publications of mutual interest.

5.7 The Board Secretariat and GS/OAS shall exchange administrative information.

5.8 In establishing cooperative relations with other regional and global organizations, the Board shall seek to coordinate its activities with them and shall maintain its identity as an OAS organ.

SECTION ANALYSIS

Article V attempts to set out the basic principles governing cooperation and coordination between the Board and OAS organs and between the Board and other entities. It incorporates provisions from the AG/RES. 87 Standards, as well as provisions from similar agreements between the OAS and other Specialized Organizations – The Pan American Institute for Geography and History (“PAIGH”), the Inter-American Institute for Cooperation on Agriculture (“IICA”), and the Inter-American Children’s Institute (”IIN”).

Section 5.1 reflects the mandate against duplication of activities set out in Article 17 of the

AG/RES. 87 Standards. It is also similar to Article 5 in the IICA, PAIGH, and IIN Agreements.6

By Resolution AG/RES. 1666 (XXIX-O/99), the General Assembly created The Committee to Coordinate Cooperation Programs of the Inter American System.7 All the Specialized Organizations, together with several important entities, such as CICAD, CITEL, and the Inter-American Human Rights Commission, are members under the terms of that Resolution.8 In the event the Board becomes either a Specialized Organization or an Entity, it should be a member too. That is the reason for Section 5.2.

The intention of Section 5.3 is to encourage the sharing of information between the Board and other OAS organs. This is particularly important with regard to those organs with which the Board has common interests – the Inter-American Committee Against Terrorism (“CICTE”), the Inter-American Drug Abuse Control Commission (“CICAD”), the OAS Permanent Council, and the Department of Multidimensional Security. The information to be exchanged includes, among others, meeting dates and agenda, technical reports, draft resolutions, and final meeting reports.9 6 For example, Article 5 of the Agreement with PAIGH states: “The programs and activities of the Institute and of the Organization shall be accomplished within a framework that avoids duplication of efforts and the duplication of expenditures and shall facilitate the implementation of the activities of the Institute, of the General Secretariat and of the other organs of the Organization.”7 To date, this Committee has not convened. Nonetheless, in the event the Secretary General should decide to activate it as a coordination mechanism for the OAS, the Board should be part of it.8 There is even one non-OAS member, the Inter-American Development Bank.9 Similar provisions are contained, for example, in Articles 8 and 9 of the PAIGH/OAS Agreement, and Articles 9 and 10 of the IICA/OAS Agreement, and Articles 7-9 of the IIN/OAS Agreement.

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Section 5.4 would permit the ranking officials of the Board to attend the meetings of other OAS organs and the ranking officials of those organs to attend Board meetings. The intent of this provision is to implement Article 26 of the AG/RES. 87 Standards. It states:

The Inter-American Specialized Organizations that have a specific interest in the agenda to be discussed at a meeting of another organ of the Organization may be represented at the meeting, with voice but without vote. In turn, the other organs of the Organization may be represented at meetings of the inter-American Specialized Organizations with voice but without vote. In both cases, the corresponding rules of procedure shall be observed.

Article 12 of the IICA/OAS Agreement, Article 11 of the PAIGH/OAS Agreement, and Article 10 of the IIN/OAS Agreement have similar language.10

Section 5.5 would allow the Board and other OAS Organs to make recommendations to each other for inclusion of agenda items in their respective meetings. This Section implements Article 24 of the AG/RES. 87 Standards, which states: “The General Assembly, the Councils of the Organization of American States, and the inter-American Specialized Organizations may make recommendations to each other for the inclusion of topics on the agendas of their respective conferences and meetings.”11

The exchange of publications is basic to any type of cooperative relationship. Section 5.6 provides for such exchange between the Board and other OAS organs. A similar provision is contained in Article 12 of the PAIGH/OAS Agreement, Article 13 of the IIN/OAS Agreement, and Article 13 of the IICA Agreement.12

Article 18(a) of the AG/RES. 87 Standards requires the Specialized Organizations to exchange “information at the administrative level” with GS/OAS. Section 5.7 reaffirms that obligation for the Board and GS/OAS. A similar provision is contained in Article 6 of the PAIGH/OAS Agreement.

Article 129 of the Charter and Article 20 of the AG/RES. 87 Standards require the Specialized Organizations to “seek the appropriate coordination of activities” and “preserve their identity and their status as integral parts of the Organization of American States.” Section 5.8 reaffirms the obligation of the Board to do the same. Article 7 of the PAIGH/OAS Agreement, Article 8 of the IICA/OAS Agreement, and Article 6 of the IIN/OAS Agreement have similar language.

10 For example, Article 11 states:The representatives of the Institute may attend, with voice but without vote, meetings of the General Assembly and of other organs, organizations and entities of the Organization. On the other hand, the organs of the Organization may send representatives to the meetings of the Institute, with voice but without vote. In both cases, the respective normal procedures shall be followed.

11 Article 10 of the PAIGH/OAS Agreement, Article 11 of the IICA/OAS Agreement, and Article 9 of the IIN/OAS Agreement have similar language.12 The corresponding provision of the PAIGH/OAS Agreement states: “The Organization and the Institute shall establish a broad exchange of their publications.”

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ARTICLE VIRESOURCES

6.1 The IADB is solely responsible for obtaining the resources necessary to fund its operations, projects, and activities.

6.2 Notwithstanding the above, the OAS General Assembly shall include in the Annual OAS Program Budget for the Regular Fund an appropriation to assist the Board in carrying out its operations, projects, and activities, subject to the following conditions:

a. To be eligible for financing from the Regular Fund under OAS Annual Program Budget, the IADB shall present to the OAS Secretary General by January 31 st of each year, or such other alternative date as may be established by written notice from the General Secretariat, its proposed program budget for the following year, indicating the portion recommended for OAS Regular Fund financing and explaining why Regular Fund financing is necessary;

b. The Secretary General shall then decide to include, all, part, or none of the IADB’s proposal as part of the Secretary General’s Proposed Program Budget for that next fiscal year.

c. If the Secretary General decides to incorporate less than all of the IADB’s proposal in his proposed Program Budget, he shall nonetheless notify the Preparatory Committee of the IADB’s proposal and explain why he has either rejected or modified it

6.3 Once approved, any appropriation for the IADB in the approved OAS Program-Budget shall be subject to adjustment by the OAS Secretary General so as to take into account insufficient cash flow during the fiscal year and other unanticipated circumstances.

6.4 Any appropriation for the IADB under the OAS Program Budget shall be subject to the auditing and reporting requirements set out in the OAS General Standards and other OAS rules and regulations, and the cost of the audit and reporting provided by GS/OAS shall be deducted from that appropriation and transferred to the corresponding GS/OAS dependencies.

SECTION ANALYSIS

It should be clear from Chapter VII "Financial Resources" of the Draft Statutes of the IADB that the Board is solely responsible for obtaining the financial resources for its activities and operations. The purpose of Section 6.1 is to reaffirm that understanding.

Under Section 25.1 of the Statute, the Board shall receive an annual appropriation from the OAS Program Budget approved by the General Assembly. There has been some discussion of whether the contribution should be obligatory, as it is now as explained in the Section Analysis for Article 25 of the Statute, or whether it should be discretionary. We decided to leave it as discretionary, with the comfort that if the General Assembly wanted in the future to make it discretionary, it could simply amend this Statute. Moreover, it could also simply decide to reduce it to a nominal amount, which for practical effects, would be the same.

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The purpose of Section 6.2 of this Agreement is to establish the process to be followed by the Board and the Secretary General in proposing that appropriation, and if it is granted, in administering it.

Subsection a would require the Board to present its proposed program budget by January 31st of the year in which the Budget is to be approved for the following year. A later date is not feasible because the Secretary General must submit his approval to the Preparatory Committee by the first week in March of that year. The proposal must indicate the amount proposed for OAS Regular Fund financing.

The Secretary General has the option under Subsection b of including all, part, or none of the Board’s proposal in his/her budget proposal required under Article 112(c) of the OAS Charter. Nonetheless, if he rejects all or part of the Board proposal, he must explain to the Preparatory Committee what the Board asked for and why he/she excluded it.

Section 6.3 assures that the Board will not be given preference over any other OAS organ during the budget execution stage. That is, if there is not sufficient cash flow to fund the budget, the IADB will be subject to adjustments like every other entity that relies on Regular Fund financing.

Under the General Standards for the Operations of the OAS General Secretariat (“General Standards”), Regular Fund expenditures are subject to stringent audit procedures. Those procedures require the hiring of outside auditors. The expense is not insignificant. Section 6.4 would subject to those audit procedures any Regular Fund appropriation granted to the Board and would require the Board to pay the cost of that audit from the corresponding appropriation. Moreover, it would authorize GS/OAS to deduct those audit costs from the appropriation.

ARTICLE VIISTAFF

7.1 The IADB shall contract its own staff in accordance with its Statutes and its own internal rules and procedures.

7.2 Staff members of the IADB are not staff members of the General Secretariat; however, staff members of the IADB may be temporarily designated Associate Staff Members of the General Secretariat under the applicable OAS General Standards and staff rules governing Associate Staff Members and staff members of either organ may be seconded to the other in accordance with their respective rules.

7.3 The IADB is a participating institution within the OAS Retirement and Pension Plan, and its staff members shall be eligible to participate in the OAS Retirement and Pension Plan and other retirement plans provided for staff members of entities of the inter-American System, provided the IADB pays the institutional contributions and other assessments required under those Plans and the decisions of the OAS Retirement and Pension Committee and of GS/OAS.

7.4 Upon the request of the Board, the OAS Secretary General shall make available the OAS Official Travel Document to the Board’s staff, provided the Board and its staff agree to comply

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with all regulations adopted by GS/OAS for its use and the Board agrees to reimburse GS/OAS for all costs incurred by GS/OAS in issuing those Travel Documents to Board staff and supervising their use.

SECTION ANALYSIS

The staff members of two of the six Specialized Organizations – The Inter-American Commission of Women (“CIM”) and IIN – are staff members of the Secretariat. The other four have their own staff, subject to their own staff rules and internal procedures. The purpose of Sections 7.1 and 7.2 is to place the Board clearly in that group of Specialized Organizations that have and regulate their own staff. Nonetheless, Section 7.2 provides for the possibility of cross secondments between the two organizations, in accordance with their respective rules.

For years, the civilian regular personnel of the Board have been provided with the opportunity to join the OAS Retirement and Pension Plan. Section 7.3 confirms that if the Board so desires, this practice will remain in force.

Section 7.4 would enable Board personnel to use the OAS Travel Document made available through GS/OAS. There is an administrative cost of issuing and supervising the use of those Documents, and the Board would have to agree to pay those costs as a condition for the use of the Document. GS/OAS also makes the Travel Document available to other Specialized Organizations, as reflected, for example, in Article 15 of the IICA/OAS Agreement.

ARTICLE VIIIGENERAL CONDITIONS

8.1 This Agreement may be modified by a written document of amendment signed by the Executive Director of the IADB, with the prior authorization of the IADB’s Council of Delegates, and the OAS Secretary General, with the prior authorization of the OAS General Assembly.

8.2 This Agreement may be terminated by either a Resolution of the OAS General Assembly or a Resolution of the IADB Council of Delegates. The termination shall become effective on the date of the corresponding resolution or as otherwise provided in the text. Upon termination, the IADB shall cease to be an inter-American specialized organization.

SECTION ANALYSIS

Section 8.1 provides that this Agreement may be modified by the Parties, upon the signature of their respective chief executive officers and with the prior authorization of the corresponding political bodies – the General Assembly for the OAS; the Council of Delegates for the Board. This language is similar to the amendment provisions in Article 16 of the PAIGH/OAS Agreement, Article 20 of the IICA/OAS Agreement, and Article 20 of the IIN/OAS Agreement. For example, Article 16 of the PAIGH/OAS Agreement states: “This Agreement may be amended by mutual consent between the Secretary General of the Institute, with the previous authorization of the General Assembly of the

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Institute and the Secretary General of the Organization, with the previous authorization of the General Assembly of the Organization.”13

Section 8.2 provides that either Party may terminate the Agreement upon the decision of its governing political body. The decision to terminate must rest with the political bodies because a decision to terminate the Agreement also terminates the Board’s status as a Specialized Organization.

Signed in duplicate originals in the English language in the city of Washington, D.C., on this day of 2005.

For the Organization of American States For the Inter-American Defense Board

_________________________________ _______________________________ Secretary General Executive Director

13 Similarly, Article 20 of the IICA/OAS Agreement states: “El presente Acuerdo podrá ser modificado por consentimiento mutuo entre el Secretario General de la Organización, previa autorización de la modificación por la Asamblea General de la Organización, y el Director General del Instituto”.

DRAFTSTATUTES

OF THE INTER-AMERICAN DEFENSE BOARD

CHAPTER I

NATURE, PURPOSE, AND FUNCTIONS

Article 1. Nature

1.1 The Inter-American Defense Board (“IADB” or “the Board”)) is [a Specialized Organization] [an Entity] of the Organization of American States (“OAS) under [Chapter XVIII] [the last paragraph of Article 53] of the OAS Charter.

1.2 The IADB enjoys the fullest technical autonomy for providing technical advice on and consultancy services in military, defense, and related [similar] matters,14 but takes into account and follows the recommendations of the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs (“Meeting of Consultation”), and the OAS Permanent Council within their respective areas of competence.

1.3 The IADB embodies in its structure and in its operations the principles of civilian oversight and, the subordination of military institutions to civilian authority, in keeping with Article 4 of the Inter-American Democratic Charter, as well as the principle of democratic formation of its authorities, to assure consistency with the democratic values of its Member States and their participation on an equal basis.

SECTION ANALYSIS

Because Statutes are always adopted by way of a Resolution of the General Assembly, there is no need for a preamble. Thus, we begin, as do most, with a discussion of the nature of the Board. The decision whether to re-constitute the Board as an Entity under Article 53 of the OAS Charter or recognize it as a Specialized Organization under Chapter XVIII (Articles 124-130) of the Charter is still pending. Thus we left the two terms in the text of Article 1 and throughout the document – one in brackets, the other without. Regardless of the choice of type of organ, the Statues will remain essentially the same. The only significant difference is if the Entity option is chosen, there will be an additional provision describing the relationship of the Entity with other OAS Organs. That is included herein below as an optional Chapter VIII, in brackets and shaded text. If the Specialized Organization option is chosen, the provisions in that optional Chapter VIII will be included in the required agreement concluded by the Secretary General between the Organization and the Specialized Organization under Article 128 of the Charter.

In both written presentations and in response to questions by delegations in the meetings of the Committee on Hemispheric Security, the OAS General Council has opined that there is no legal advantage of one option over the other. Several delegations, however, have expressed a preference

14 This formula text is a result of conversations with the delegations and attempts to accommodate their concerns. It is used throughout the document. At least one Member State has objected to the term “related”. It has been suggested that the word “similar” in brackets be used as an alternative.

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for the Entity option because it involves fewer documents and does not require the signing of an agreement between the Organization and the Board. For some, the agreement would complicate and likely delay their ability to support the specialized organization option.

Section 1.2 establishes the technical autonomy of the Board in providing technical, consultative and educational advice on to military, defense, and related [similar] matters. As for the origin of the formula language “military, defense, and related [similar] matters,” please see the Section Analysis of Article 2 below.

Technical autonomy is a characteristic enjoyed by all the specialized organizations under Article 126 of the Charter.15 And although there is no Chapter in the Charter that regulates Entities analogous to Chapter XVIII covering Specialized Organizations, it is also a characteristic of most of the Organization’s entities, as for example in Article 1 of the Statute of the Inter-American Committee against Terrorism (“CICTE”) and Article 1 of the Statute of the Inter-American Drug Abuse Control Commission (“CICAD”), and Article 1 of the Statute of the Inter-American Telecommunications Commission (“CITEL”).

Article XVIII of the Charter requires the specialized organizations to “take into account” the recommendations of the General Assembly and the Councils of the OAS. There is no similar provision governing the other “entities” created under the last paragraph of Article 53 of the Charter. Nonetheless, because the General Assembly is the supreme organ under Article 54 of the Charter, all other OAS organs, of which entities are a specific genre, must take into account the recommendations of the General Assembly. The phrase “taking into account” is subject to interpretation. It can mean simply “to consider”, or it can mean to “follow”. In this case, however, the Member States have expressed a desire to subject the Board to civilian control, and the only sure way of doing that is to add language in the statute that clarifies that the intent of the phrase “taking into account” in this case is “to follow”. For that reason in Section 1.2, we have provided that the Board “takes into account and follows” the recommendations of the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs (“Meeting of Consultation”), and the Permanent Council, in their respective areas of competence.

The reason we have mentioned those three organs of the OAS -- the General Assembly, the Meeting of Consultation, and the Permanent Council – is that all three of these organs exercise executory decision-making authority within the Organization in military and defense related areas. Under Article 54 of the Charter, the General Assembly is the Supreme Organ, and it is responsible for the general policies of the organization and the structure and functions of its organs, as well as their coordination. The Meeting of Consultation, under both the Rio Treaty and Article 65 of the Charter deals with issues of defense and armed attack. For its part, the Permanent Council has responsibility under Article 91(a) of the Charter for implementing and supervising many of the General Assembly mandates. It acts in plenary and its various committees, three of which presently interact frequently with the Board: the Committee on Hemispheric Security, the Committee on Budgetary and Administrative Matters, and the Committee on Juridical and Political Affairs.

The Inter-American Committee against Terrorism (“CICTE”) is another organ that may treat defense and military related issues in the exercise of its functions. Nonetheless, we purposely

15 Article 126 states: “The Specialized Organizations shall enjoy the fullest technical autonomy, but they shall take into account the recommendations of the General Assembly, and of the Councils, in accordance with the provisions of the Charter.”

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omitted CICTE from those OAS organs whose decisions the Board is forced to follow. The reason is that CICTE lacks the final policy making, supervisory, and executive decision making authority that the General Assembly, Meeting of Consultation, and Permanent Council have with respect to the Organization and the activities of its other organs.

In the reconstituted IADB the principles of the subordination of the military to civilian oversight and authority and of the democratization of the Board’s leadership are central to defining the “modernized” institution. Both Resolutions AG/RES. 1848 ((XXXII-O/02) and 1998 (XXXIV-O/04) and the 2003 Declaration on Security in the Americas emphasized that those principles must be taken into account in restructuring the Board as an OAS organ. For that reason, we have included Section 1.3 in this Article on the “Nature” of the Board.

Article 2. Purpose

2.1 The primary purpose of the IADB is to serve as the specialized advisory organ in the OAS for providing technical advice on and consultancy services in military, defense, and related [similar] matters, and to develop and provide opportunities for advanced academic study of matters related to military subjects and defense, the Inter-American System, and related academic disciplines to military and civilian governmental officials.

2.2 In carrying out its purposes, the IADB shall take into account the needs of the smaller states, whose level of vulnerability is greater in the face of traditional threats and of new threats, concerns, and other challenges.

SECTION ANALYSIS

At the time of this drafting, there was a lack of consensus regarding the purpose of the Board. The ALADI group, in the paper entitled Posición del Grupo ALADI sobre los Criterios que Deberán Prevalecer en la Definición del Vínculo Jurídico e Institucional de la JID con la OEA, CSH/GT/ADS-16/04 (“the ALADI Position”), maintains that the Board’s function should be primarily advisory and that it should deal only with military and defense matters.

Other countries have presented written proposals to include the concept of security within the Board’s mandate as well. They include the United States, El Salvador, Canada, Antigua and Barbuda, Bahamas, Barbados, St. Kitts and Nevis, St. Vincent and the Grenadines, Trinidad and Tobago, and Guatemala (in representation of GRUCA)16, GRUCA and the Caribbean Member States that responded indicated that a more modernized Board should “take into account the needs of smaller states, whose level of vulnerability is greater in the face of traditional threats and of new threats, concerns and other challenges.”17

16 See Statement by the United States on the Legal and Institutional Relationship Between the OAS and IADB, CSH/GT/JID/7/04; The National Vision of El Salvador of the Legal and Institutional Relationship Between the Organization of American States and the Inter-American Defense Board, CSH/GT/ADS-18/04; Aide Memoire, Canada and the Inter-American Defense Board, CSH/GT/ADS-22/04; Position of Antigua and Barbuda, Bahamas, Barbados, St. Kitts and Nevis, St. Vincent and the Grenadines, and Trinidad and Tobago on the Legal and Institutional Relationship Between the OAS and the IADB, CSH/GT/JID-9/05; Position of the GRUCA on the Legal and Institutional Relationship Between the OAS and the IADB, CSH/GT/ADS-20/04. The GRUCA includes Belize, El Salvador, Honduras, Nicaragua, Costa Rica, Panama, the Dominican Republic, and Guatemala.17

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Moreover, GRUCA’s position as expressed in its paper entitled, “Position of the GRUCA on the Legal and Institutional Relationship between the OAS and Inter-American Defense Board, CSH/GT/ADS-20/04 (“the GRUCA position”), emphasizes the importance of including both defense and security issues in the IADB’s mandate. Canada in its Aide Memoire entitled, “Canada and the Inter-American Defense Board,” CSH/GT/ADS-22/04 corr.1, and the United States in its remarks at the Committee on Hemispheric Security Working Group to Conclude the Analysis of the legal and institutional Relationship between the OAS and IADB on November 2, 2004 support the inclusion of certain limited security issues in the Board’s mandate as well. In their February 9, 2005 letter to the General Secretariat (CSH/GT/JID-9/05), Barbados, Bahamas, Trinidad and Tobago, St. Kitts and Nevis, St. Vincent and the Grenadines, and Antigua and Barbuda, emphasize that ”the future mandate of the IADB should involve not only matters of defense, but also matters of security.”

The text presented here provides a bridge for resolving this impasse. The text describes the mandate as “military, defense, and related [similar] matters.” This language ensures that the Board will not encroach upon what many countries consider the areas of security, which fall within the jurisdiction of the civilian police force. This is also ensured in section 3.2 with more explicit language. The term “military, defense, and related matters” is a formula that satisfies the ALADI concern and permits the Board to entertain those kinds of defense-related matters for which other countries might want to count on the Board’s expertise. At the same time, this compromise language would satisfy GRUCA’s position, that of the six CARICOM nations, as well as Canada and the U.S.

The statement of purpose in Section 1 of this Article emphasizes that the Board’s role is primarily advisory. This reflects what seems to be a consensus in the OAS that the Board’s purpose should include only advisory functions except for the important educational functions it performs through the Inter-American Defense College (“IADC”). Article 2.2 recognizes the interest expressed by the smaller OAS member states in having the Board advise on matters which serve their interest within the Board’s area of competence. Hopefully, they will find it satisfactory because It incorporates that interest into the Board's very purpose.

Article 3. Functions and Limitations

3.1 The IADB shall have the following specific functions:

a. To provide technical advice on and consultancy services in military, defense, and related [similar] matters to:

(i) OAS organs and the dependencies of the General Secretariat, upon their request; and;

(ii) OAS Member States upon their request and with the prior approval of either the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, or the OAS Permanent Council;

ii. bis: OAS Member States t upon their request, subject to the limitations set out in Section 3.2 below.

?Id., Guatelmala Position Paper on behalf of GRUCA, supra.

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b. To provide to military officers and civilian officials from the OAS Member States, through its Inter-American Defense College in Washington, D.C., advanced academic courses in military, defense, and related [similar] matters, the Inter-American System, and related disciplines;

c. To promote interaction and cooperation between and among ranking civilian officials and military officers from the OAS Member States on issues relating to defense and military affairs;

d. To cooperate with GS/OAS in its demining programs within the hemisphere;

e. To provide OAS Member States with technical assistance in developing a handbook on best practices for identification, collection, management, security and destruction of stockpiles of small arms and light weapons;

f. To provide OAS Member States with technical assistance in developing National Defense Doctrine and Policy Papers ("White Papers");

g. To maintain for the Committee on Hemispheric Security updated inventories on confidence-and security- building measures both in the Hemisphere and in other regions, as well as an electronic database of the information contained in those inventories, and prepare, when requested, studies on such measures and draft guidelines for the standardized presentation of reports on the application of such measures by Member States;

h. To cooperate with other regional and global organizations of a similar nature on technical matters involving defense and the military;

i. To complete such other mandates as may be directed by the OAS General Assembly, the Meeting of Consultation of Foreign Ministers, and the OAS Permanent Council.

3.2 The following limitations apply to the Board’s functions and activities:

a. The IADB’s activities shall in no way be operational in nature and shall therefore not include the planning, preparation, direction or coordination of military operations, unless explicitly directed to do so by the OAS General Assembly or the Meeting of Consultation of Ministers of Foreign Affairs;

b. The IADB shall not provide any advice to States unless requested to do so by the OAS General Assembly, the Meeting of Consultation, or the OAS Permanent Council;

b.bis The IADB shall promptly inform the Permanent Council of any advice or services it provides to states and other OAS organs so as to guarantee full transparency in its operations.

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c. The IADB shall have no functions other than those stated in these Statutes or otherwise directed by the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, or the OAS Permanent Council.

SECTION ANALYSIS

Subsections a and b of Section 3.1 reaffirm the two central functions of the Board–providing technical advice in military, defense, and related [similar] matters and advanced academic courses in those matters, the Inter-American System, and related disciplines. The technical advice may be given to other organs of the Organization or to Member States, but only at their request and with the prior approval of one of the key civilian organs of the OAS involved in matters relating to defense and the military – the General Assembly, the Meeting of Consultation, or the Permanent Council.

Bis: Subsections and b of Section 3.1 reaffirm the two central functions of the Board–providing technical advice in military, defense, and related [similar] matters and advanced academic courses in those matters, the Inter-American System, and related disciplines. The technical advice may be given to other OAS organs and Member States, provided that, in the interest of transparency, as stated in Section 3.2 and the corresponding Section Analysis below, the Permanent Council is advised of all such requests and of the advice and services so provided.

Another specific function is promoting interaction and the healthy interchange of ideas among ranking military officers and civilian officials on defense and military subjects. This has been an important function of the Board for years and is useful for maintaining networks and the understandings helpful for resolving defense and military related problems in the hemisphere when they arise. It deserves to be mentioned.

Still another function is cooperating with the General Secretariat in the demining programs. This is an important function which the Board has carried out for almost fifteen years, and it should not go unrecognized. Other functions related to CSBMs, defense doctrine and policy papers, and small arms and light weapons, which the Board has been carrying out in response to General Assembly mandates should be recognized and continued.

A new suggested function for the Board is the preparation of a best practices handbook for topics within its area of competence. This is incorporated into subsection e of this Article. Another is providing assistance to Member States requesting it for the development of national defense policy papers, as stated in subsection f.

Another function of the Board, which is presently ongoing, is the maintenance of data bases on confidence and security building matters. This will assist it in providing the technical advice and consultative services requested and in building its inventory of best practices.

Still another function, as stated in subsection h, is dialoging with global and other regional organizations dealing with similar areas of competence. We included this function because it is one of the functions given to the Specialized Organizations under Article 129 of the Charter.18 But there is no reason why an Entity, as an international organ, should not carry out this same function.

18 Article 129 states, in pertinent part: “The Specialized Organizations shall establish cooperative relations with world agencies of the same character in order to coordinate their activities.”

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Finally, the Board has the function of carrying out additional tasks that the political bodies – the General Assembly, the Meeting of Consultation, and the Permanent Council – may request. That function should be added to eliminate any doubt over the Board’s duty to respond to those requests from those civilian organs.

Section 3.2 states that the Boards activities shall not be “operational” in nature, and that its functions should be advisory and educational in nature. This appears to be a consensus position that has emerged from the position papers presented.

Subsection b of Section 3.2 takes into account concerns raised by ALADI regarding possible limitations on the Board’s capacity to respond to individual requests for consultancy services and advice to individual Member States. There are two versions: one would permit the Board to provide consultancy services and advice to individual countries only with the approval of the General Assembly, the Meeting of Consultation, or the Permanent Council. This is the position presented by ALADI in its prior position paper. The other, indicated by “bis,” was suggested in recent consultations with one ALADI delegation in the spirit of reaching a consensus position. It would allow the Board to provide such advice and services upon request; however, in the interest of transparency, it would also require the Board to report promptly to the Permanent Council on all such requests received and the advice and consultancy services provided.

CHAPTER IIPARTICIPATION

Article 4. Members

4.1 Upon submission of a written request for membership to the Chair of the IADB Council of Delegates (“the Chair”), any OAS Member State shall become a Member State (“Member”) of the Board

4.2 Membership in the Board may be suspended under the following circumstances:

a. Application of Article 9 of the OAS Charter;

b. Application of Article 21 of the Democratic Charter; and

c. By a vote of two thirds of the Members for failure to attend meetings of the Council of Delegates in accordance with the requirements of the Board’s Rules of Procedure or failure to comply with other requirements established by the Council of Delegates;

4.3 A suspended Member shall not be taken into account for purposes of determining quorum and necessary voting majorities for the Council of Delegates; nor shall officials from suspended Members be eligible to serve as elected officers of the IADB.

4.4 A Member may withdraw from the Board with one year’s advanced written notice to the Chair and upon the effective date of withdrawal, membership in the Board will cease. Similarly,

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the membership in the Board of any State that withdraws from the OAS shall cease upon the effective date of that withdrawal;

4.5 A member that has been suspended under Articles 4(2)(a) and 4(2)(b) shall be reinstated once the suspension has been lifted by the OAS General Assembly; a member that has been suspended under Article 4(2)(c) shall be reinstated upon a vote of two thirds of the Council of Delegates; and a Member that has voluntarily withdrawn may request reinstatement as a new member under Article 4.1 above.

SECTION ANALYSIS

Section 4.1 provides that the Members of the Board shall be those OAS Member States that request membership by way of a written request to the Chair. We did not make membership automatic for OAS Member States, as it is, for instance, in the Statutes of the Children’s Institute and Commission of Women, because we understand that there are some OAS Member States that do not want to be Members. Thus, as in the Inter-American Institute for Cooperation in Agriculture (“IICA”), for example, they must request membership before it is conferred. There is, however, no approval process. Membership is conferred automatically once it is requested.

A Member may have its membership status suspended, however, under a number of conditions set out in Section 4.2. First, it will lose its status if it is suspended from the OAS under either Article 9 of the Charter or Article 21 of the Democratic Charter. Such suspension requires a two-thirds vote of the General Assembly as set out in those documents.

Moreover, under Article 4.2(c) its membership will be suspended if it fails to comply with additional requirements established by the Board in its rules. Such suspension is not automatic. As stated in Article 4.2(c) and later in Article 15, it requires a qualified majority vote of two thirds of the Board Members because of its seriousness. A similar provision is contained in subsection d of the Board’s current Regulations.

Provisions allowing for suspension for not following membership requirements are not unknown in the inter-American system. Article 24 of the IICA Convention, for example, allows for the suspension of members who are more than two years in arrears in the payment of quotas.

Article 4.3 establishes that suspended members shall not be taken into account in computing quorum requirements and the definition of a majority of the members for purposes of voting. The OAS has no specific written rule in this regard. But the practice, as demonstrated by the treatment of Cuba since its suspension in 1962, is what is stated in this Article. IICA, which was the first of the inter-American organs to provide for the possibility of suspension in its basic documents, also has adopted rules for determining the quorum and majority for voting when Members are temporarily suspended.19

19 See IICA Regulations for Application of Article 24 of the Convention on the Inter-American Institute for Cooperation in Agriculture, Article V. It states:

5.1 For purposes of computing quorum requirements of the sessions of the Board and Committee under their respective Rules of Procedure, only Member States whose voting rights are not suspended shall be counted.

5.2 For purposes of computing a majority of the Members, a majority of the Members present, and a two-thirds majority of the Members, only Member States whose voting rights are not suspended shall be counted

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Article 4.5 provides for the termination of membership, either due to voluntary withdrawal or withdrawal from the OAS. Because membership in the OAS is a prerequisite to membership in the Board, membership in the Board must terminate once that prerequisite is no longer satisfied. This Article also provides for reinstatement of States that wish to rejoin the OAS and/or the Board, as the case may be. They must request membership according to the procedure for new members in Article 4.1

Finally, Article 4.4 sets out procedures for restoring full status to a suspended member. The restoration is automatic if the OAS General Assembly lifts as suspension under Article 9 of the Charter or Article 21 of the Inter-American Democratic Charter. Because suspension to comply with IADB requirements must be imposed by a vote of two thirds of the Board’s members under article 4.2(c), this rule provides that it can only be lifted and full membership restored by a similar vote.

Article 5. Permanent Observers

5.1 Upon submission of a written request to the Chair, any OAS Member State which is not an IADB Member and which has not been suspended from the OAS or the Board, as well as any Permanent Observer to the OAS shall become a Permanent Observer of the Board.

5.2 Any other Member State of the United Nations may request Permanent Observer status from the Board, in accordance with requirements and procedures established by the Council of Delegates, and subject to the approval of the OAS Permanent Council.

5.3 Permanent Observers may attend the Assemblies of the Council of Delegates and may enjoy such other additional privileges that the Council of Delegates may extend to them. They shall not, however, speak at the meetings of the Council of Delegates without the permission of the Chair.

SECTION ANALYSIS

Chapter IV of the Standards for the Implementation and Coordination of the Provisions of the Charter Relating to the Inter-American Specialized Organizations set out in Resolution AG/RES. 87 (II-0/72) establishes that the Specialized Organizations may establish conditions for the participation of independent American states that are not OAS Members and non-American States. The Statutes of the IIN and the Inter-American Commission of Women (“CIM”) have no provision that allows non-OAS Member American States to become members. In contrast, the Inter-American Convention of the Inter-American Institute for Cooperation on Agriculture (“IICA”) and the Organic Statutes of the Pan American Institute for Geography and History (“PIAGH”) do.

In light of the potential sensitivity of the Board’s work and the civilian supervision of the Board by other OAS Organs, we decided not to include a provision in these Statutes allowing non-OAS Member States to be members. These draft statutes do allow those states, however, to become Permanent Observers.

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The Permanent Council’s rules for Permanent Observers, set out in CP/RES. 407 (572/84), provide that Permanent Observers recognized by the Permanent Council shall be accredited as Permanent Observers at all other entities and organs “except the Specialized Organizations.” Article 9 of those rules go on to say that the Specialized Agencies may make their own rules for recognizing Observers, taking into account the Permanent Council’s recommendations. All entities and organs of the Organization are entitled to establish in their own rules just what rights and privileges Permanent Observers shall have.20

In the practice, most specialized organizations have automatically recognized as Permanent Observers the Permanent Observers accredited by the OAS Permanent Council, even though the rules under Resolution CP/RES. 407 do not require them to do so. For example, the Article 13 of the Statutes of the Inter-American Commission on Women (“CIM”), Article 8 of the Statute of the Inter-American Institute for Children (“IIN”), and Articles 8 and 9 of the Rules of Procedure of the IICA’s Inter-American Board of Agriculture (“IABA”) establish that the Permanent Observers of the OAS shall be accredited as Permanent Observers of those specialized organizations. Like the Permanent Council, CIM, IICA, and IIN also give Permanent Observers the right to attend meetings and to speak only with the consent with the chair.21

Article 5 reflects the above-mentioned standards, rules, and practices of other Specialized Organizations. Section 5.1 provides that all OAS Permanent Observers accredited by the Permanent Council shall be Board observers if they request Permanent Observer Status before the Board. Section 5.2 recognizes the Board’s discretion to accredit other states as Permanent Observers as well, in accordance with Articles 7 and 8 of the Permanent Council’s Rules adopted in Resolution CP/RES. 407. This provision need not be altered if the Entity option is chosen because the ultimate decision on whether a country shall have Permanent Observer Status at the Board still will rest with the Permanent Council through the approval process.

Section 5.3 recognizes the practice prevalent at the Council and other specialized organizations of allowing Permanent Observers to speak at meetings only with the permission of the Chair. At the Board, they will have the right only to attend the formal meetings of the Council of Delegates, which are the Assemblies. Nonetheless, through its Rules of Procedure, the Council may subsequently extend the right to attend other meetings. That decision is left to the Board under Section 5.3, in accordance with the independence given specialized organizations and other entities in this area under Resolution CP/RES. 407.

Article 6. Other Observers

6.1 The Secretary General of the OAS or his/her representative, and the representatives of the other OAS organs may participate as Observers in the Assemblies of the Council of Delegates.

6.2 Member States of the United Nations that are neither OAS Member States nor Permanent Observers and other regional and global public international organizations with interests and functions similar to those of the IADB, including, but not limited to, those in the United Nations system, may become observers at particular IADB meetings and other activities sponsored by the Board.

20 See Resolution CP/RES. 407, operative paragraphs 7 and 8.21 See, e.g., IABA Rules of Procedure, Article 10.

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6.3 Other agencies and entities of Member States of the United Nations, except for those agencies and entities whose headquarters or principal activity is in a territory over which there exists a sovereignty dispute between an OAS member state and a state outside the American Hemisphere;

6.4 Civil society organizations, except for those organizations whose headquarters or principal activity is in a territory over which there exists a sovereignty dispute between an OAS member state and a state outside the American Hemisphere.

6.5 Those States and other entities seeking Observer status for a particular meeting or activity shall request it in writing from the Chair of the Council of Delegates within thirty days prior to the meeting or activity or within such other lesser period as may be determined by the Council of Delegates in its Rules of Procedure. In each case, the Chair will decide on the disposition of the request, upon consultation with the members of the Council of Delegates.

6.6 Observers may attend the meeting or activity for which they are accorded Observer Status; however, they may speak only at the invitation of the Chair or other presiding official, as the case may be.

SECTION ANALYSIS

The rules of most OAS organs provide for the participation of Observers in their public meetings. States and other non-OAS public international organizations seeking Observer Status must request it on a meeting by meeting basis in most instances. Section 6.2 incorporates those common practices within the Board Statutes for non-member and non-Permanent Observer States.

The provisions regarding possible Observer status for other national entities and civil society are copied from Article 7 of the recently modernized Statute for the Inter-American Children’s Institute. Those provisions, which are set out in Sections 6.3 and 6.4, were cautiously negotiated last year to take into concerns voiced in other fora by an OAS Member State and are derived from the over-all Guidelines for the Participation of Civil Society Organizations in OAS Activities.

Observers in most organizations have the right to attend the meetings for which they are give Observer status, but they may speak only at the invitation of the Chair.22 This is reflected in Section 6.5.

All the entities we know of recognize either in their rules or in practice, the right of the Secretary General and representatives of other OAS organs to attend their public meetings as observers.23 Section 6.1 establishes and recognizes that practice within the Board.

Article 7. Experts and Other Guests

7.1 The Chair, upon consultation with the Members, may invite experts and other guests to participate in the meetings of the Council of Delegates and other activities of theBoard.

22 See, e.g., IABA Rules of Procedure, Article 14.23 See, e.g., IABA Rules of Procedure, Article 12; Agreement Between OAS and IIN, Article 10.

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7.2 Experts and other Guests shall participate in accordance with the terms of their invitation in each case; however, in no event shall they be entitled to speak without the permission of the Chair.

SECTION ANALYSIS

Article 7 creates a third category of non-member Participant, which is the “invited guest.” Some organizations group observers and invited guests under one category called “Observers.”24 Some of the more technical agencies, like IICA, have divided non-permanent observers into Observers and invited guests.25 In light of the technical nature of the Board’s mandate, we have chosen to follow the IICA model, which, is also similar to that of the General Assembly as established in its rules.26

Section 7.1 allows the Chair to invite special guests and experts to address the Board’s meetings, upon consultation with the Members. In accordance with Section 7.2, the scope of the guest or expert’s participation in each meeting will be governed by the terms set out in the invitation.

Article 8. Costs

8.1 The IADB may charge Permanent Observers, Observers, and Guests the costs associated with their participation, including, but not limited to, the costs of translating, reproducing, and distributing their documents to other participants.

SECTION ANALYSIS

The participation of additional non-Members in the meetings of the Institute does not come without its marginal costs. Setting up additional places in the meeting rooms, document reproduction, use of facilities, translation and interpretation of statements -- all these translate into money. The purpose of this provision is to authorize the Council to recover all, or at least some, of those costs from non-Member participants.

CHAPTER IIISTRUCTURE

Article 9. Organs

9.1 The IADB shall have the following organs:

a. The Council of Delegates;

b. The Secretariat; and

c. The Inter-American Defense College (“IACD”).

24 See CIM Rules of Procedure, Articles 6.25 See IABA Rules of Procedure, Articles 13 and 14.26 See General Assembly Rules of Procedure, Articles 9 and 10.

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SECTION ANALYSIS

This Article establishes a simple organizational structure for the Board. It recognizes three organs: The Council of Delegates (the political organ), which establishes the strategic policies for and supervises the Board, within the guidelines established by the OAS General Assembly, Meeting of Consultation, and Permanent Council; the Secretariat, which provides advisory, conference, and administrative support to the Council and executes all its decisions not falling within the competence of the Inter-American Defense College; and the Inter-American Defense College, which carries out the Boards educational functions.

Earlier proposals identified as organs of the Board the Office of the Chairman and Office of the Director General (referred to as “Executive Director” in those earlier proposals). Yet to identify the office of the Chair and the office of the Director General as organs separate from the organs they manage makes little sense. Indeed, under the OAS Charter, the Chair of the Permanent Council, the Secretary General, and the Chair of the General Assembly are not identified as separate organs.27 Neither is the Chair of the Executive Committee or the Director General at IICA;28 nor the Director General of the IIN.29

CHAPTER IVCOUNCIL OF DELEGATES

Article 10. Purpose

10.1 The Council of Delegates (“the Council”) is the representative body of the Members established to:

a. Develop and adopt the policies, activities, and directives of the Board, within the guidelines established by the OAS General Assembly, the Meeting of Consultation, and the Permanent Council; and

b. Oversee the implementation of those policies, activities, and directives by the Board’s Secretariat and the Inter-American Defense College.

SECTION ANALYSIS

Under its present Regulations, the political organ of the Board is its Council of Delegates in which all the members are represented. These proposed statutes do not materially alter the composition of the Council, its functions, its primary purpose, and how it does business under those

27 See Article 53 of the Charter.28 Article 6 of the IICA Convention states: “The Institute shall have the following organs: a. The Inter-American Board of Agriculture; b. The Executive Committee; and c. The General Directorate.”29 Article 11 of the IIN Statute states as follows:

“El Instituto realiza sus fines por medio de los siguientes órganos: a. El consejo Directivo; b. El congreso Panamericano del Niño; y c. La Oficina del Instituto.”

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regulations. They do, however, require, consistent with the suggestions of the OAS Member States, that the Board carry out its activities under civilian control. Thus, the Council retains its function of establishing the policies, activities, and directives of the Board, but under this Article 10, it must do so within the guidelines established by the OAS General Assembly, the Permanent Council, and the Meeting of Consultation of Ministers of Foreign Affairs.

Article 11. Functions

11.1 The Council shall have the following functions: Establish the policies and strategic objectives of the IADB within the guidelines and limitations established in these Statutes, the Agreement Between the OAS and the IADB, and the resolutions of the OAS General Assembly, the Meeting of Consultation, and the OAS Permanent Council;

a. Analyze and approve the annual budget of the IADB, prepare, for submission to the OAS Secretary General, the IADB’s annual proposal for an appropriation from the OAS Program-Budget, and approve measures for financing the IADB’s activities;

b. Oversee, analyze, and evaluate the implementation of the IADB’s projects and activities:

c. Provide instructions and operational guidance to the Director General;

d. Oversee the management of all resources entrusted to the IADB;

e. Adopt its own Rules of Procedure, Staff Rules, and Financial Rules;

f. Decide whether to suspend or reinstate Members in accordance with Articles 4.2(c) and 4.5 of these Statutes;

g. Plan and provide for the succession of the elected officers of the IADB;

h. Elect its Chair and other officers of the IADB as provided further in this Statute and in its Rules of Procedure;

i. Propose to the OAS Permanent Council, for adoption by the OAS General Assembly, amendments to these Statutes;

j. Report to the OAS General Assembly annually on the IADB’s activities in accordance with guidelines established by the OAS General Assembly;

k. Constitute committees, subcommittees, working groups, and other subsidiary organs to assist it in carrying out its functions;

l. Establish guidelines for cooperation agreements between the IADB and other regional and global organizations involved in military, defense, and related [similar] matters; and

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m. Perform such other tasks as specified under these Statutes or as may be assigned by the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, or the OAS Permanent Council.

SECTION ANALYSIS

This Article is an effort to inventory in one place in these Statutes the many functions of the Council. Some are derived from its present regulations; others from practice; others constitute the generic types of functions performed by the political bodies of Specialized Organizations and other technical/political entities within the OAS;30 and still others are derived from other sections of these Statues which make reference to some kind of action by the Council.

Article 12. Delegations

12.1 The Council shall be composed of one Chief of Delegation from each Member, and each Delegation shall have one vote in the Council’s meetings.

12.2 The Chief of Delegation of each Member shall be appointed by the Member’s Minister of Defense or the civilian official of comparable authority in the Member’s government.

12.3 The Chief of Delegation shall be a Flag or General Officer or Captain/Colonel or a civilian official of comparable authority from the corresponding ministry and having comparable knowledge of matters related to military, defense, and related [similar] matters.

a. The Chiefs of Delegation represent their respective ministries in the IADB through their participation in meetings of the Council and other IADB activities; and

b. The Chiefs of Delegation are the official liaisons between the IADB and their respective governments, and between the IADB and their respective Permanent Representatives to the OAS.

12.4 Each Member may appoint alternate delegates, advisors, and other personnel to its delegation. A Member’s alternate delegates, in the absence of the Chief of Delegation, shall be authorized to represent that member at Council Assemblies, other meetings, and other IADB activities.

a. Delegates will be officers of the armed forces, or civilian officials of the Member, or its diplomatic corps, with expertise appropriate to the competence of the IADB.

b. Advisors may not represent the Chief of Delegation at a Council Assembly.

12.5 Each Member shall accredit its Chief of Delegation and other members of its delegation by presenting credentials to the Chair.

30 See, e.g., Article 8 of the IICA Statute on the functions of the IABA; Article 12 of the Statute of the IIN for its Board of Directing Council; and Article 23 of CIM Statute regarding the CIM´s Executive Committee.

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12.6 Delegates and other staff members of delegations may not hold staff positions in the organs of the IADB; however, they may participate in committees, subcommittees, working groups, and other subsidiary organs as may be constituted by the Council or its Chair, as well as in working groups established by the Director General.

SECTION ANALYSIS

Section 12.1 provides that each Member shall have a Chief of Delegation and one vote in the Council. This incorporates the principal of the juridical equality of states under Article 10 of the OAS Charter.

Section 12.2 provides that the Chief of Delegation must be appointed by the Minister of Defense or other civilian authority of the Member competent to make the appointment. The purpose of this provision is to reinforce the principle of civilian control over the military in democratic governance in the Americas.

Section 12.3 requires that the Chief of Delegation from each Member shall be of Flag or General Officer rank or a civilian official with comparable authority and knowledge from the Member. The requirement of Flag/General Officer rank for military offices and comparable authority and knowledge for civilian representatives was proposed by the Council of Delegates in an earlier draft of these Statutes and assures that each Member will be able to participate in the Council’s business with respected and qualified representatives.

Requirements of this nature are not uncommon in other organizations. Article 80 of the Charter requires that OAS Member permanent representatives to the Permanent Council have the rank of ambassador. Article 7 of the IICA Convention provides that representatives to the IABA “shall preferably be connected with agricultural and rural development.” Article 8 of the IIN Statute provides that the representatives to the Directing Council be selected from “among the highest ranking officials of its government entities specialized in issues involving children and the family, or among individuals with will known related expertise in those issues.” Similarly, Article 7 of the Statute for the Inter-American Agency for Cooperation and Development (“IACD”) specifies that representatives of the Members of the IACD’s Management Board “preferably should have recognized experience and expertise in matters pertaining to cooperation and development programs and related activities.”

Section 12.4 establishes requirements for the other members of delegations. These requirements have been proposed by the Council of Delegates in an earlier draft of these Statutes and are not unreasonable.

Section 12.5 identifies the procedure for accrediting delegations before the Chair. This was proposed by the current Council of Delegates. Another option would be to have them accredited before the Director General. Indeed, the practice at the OAS Permanent Council and IICA is to accredit delegations through the Chief Executive Officer -- in the case of the OAS, the Secretary General; in the case of IICA, the Director General. Nonetheless, there is nothing unusual with having the accreditations done by the Chair. Until the rules of the OAS Council were changed several years ago, accreditations of ambassadors were done by the President of the Council instead of the Secretary General. It can go either way.

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Section 12.6 is a conflict of interest provision. It prevents delegates from holding staff positions in the Secretariat and IADC. Both OAS and IICA have similar rules. Article 34 of the General Standards for the Operation of the General Secretariat of the Organization of American States (“General Standards”) and Article 28 of IICA’s Rules of Procedure of the General Directorate provide that no staff members may also hold a governmental position.”

Article 13. Meetings

13.1 Assemblies: The Council shall hold Assemblies for the purpose of taking the final and binding decisions necessary for carrying out its functions. Assemblies shall be convened by the Chair or the Vice Chair, in the absence of the Chair. Formal minutes must be taken and distributed in a timely manner to the Members. Unless otherwise stated herein, voting and debate shall proceed in accordance with the Council’s Rules of Procedure. Assemblies may be Regular, Plenary or Extraordinary.

a. Regular Assemblies shall be convened at intervals specified in the Council’s Rules of Procedure or as otherwise established in a schedule of meetings approved by the Council.

b. The Plenary Assembly is a Regular Assembly that meets once each year for the principal purpose of commemorating the anniversary of the IADB and addressing issues of special interest to the Members.

c. Extraordinary Assemblies shall be convened upon the request of at least five members to address urgent, sensitive, or otherwise unanticipated matters.

13.2 Informal Meetings: Informal Meetings are convoked by the Chair or Vice Chair, in his/her absence, for the purpose of exchanging views informally on matters of mutual interest. No binding decisions are taken and minutes are not required.

SECTION ANALYSIS

Article 13 of these Statutes sets out the types of meetings that the Council of Delegates may hold. The Council, in a recent proposal referred to the formal meetings in which it takes decisions as “Assemblies.” We see no reason to change that if the Council likes the term.

Article 13.1 classifies the Assemblies into three types: Regular, Plenary, and Extraordinary. The Regular Assemblies are those convoked by the Chair and Vice Chair in accordance with a schedule of regular meetings set out in the Council’s rules of procedure or in a schedule approved by it. Extraordinary meetings are meetings convoked by the Chair or Vice Chair at any time upon the request of at least five delegations. The Plenary Assembly, according to the present Council, is a Regular Assembly convoked once a year to commemorate the founding of the Board and treat special issues.

Many OAS organs transact much of their business in informal meetings before taking final decisions in formal meetings. The Council is no different from them in that regard. Thus, Article 13.2 provides for the convocation of informal meetings, in which no final decisions are taken.

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Article 14. Quorum and Voting

14.1 For Assemblies a quorum of a one third of the Members is required to meet and a quorum of a majority of the Members is required to take a binding decision, except, however, a quorum of two thirds of the Members is required to take any of the binding decisions for which a two-thirds vote of the Members is required.

14.2 A vote of two-thirds of the Members is necessary: to adopt the annual budget; to suspend a Member under Article 4.2(c); to reinstate a suspended member under Article 4.5; and to remove from office the Chair, the Vice Chair, or any other elected official of the Board.

14.3 All other decisions, including those to elect the Chair, the Vice Chair, and other officers shall require a majority of the members. For purposes of these Statutes, a majority is more than 50%.

14.4 For Informal Meetings, no quorum is required and no binding votes shall be taken.

14.5 Each Committee, subcommittee, or working group shall not meet without a quorum of at least one third of its members and shall adopt decisions and recommendations by a majority vote of its members present, with out prejudice to the right to adopt different voting rules after its first meeting.

SECTION ANALYSIS

Article 14.1 would permit the Council to meet with a quorum of only one third of its Members. An earlier proposal we saw required a quorum of two thirds. We thought that was unrealistically high, particularly if the membership of the Board expands as a result of this reorganization effort. Accordingly, we incorporated the lower requirement of one third, which is the same quorum requirement used by the Permanent Council under Article 16 of its Statute. As with the Permanent Council Rules, however, Section 14.1 requires a higher quorum for voting – two thirds of the Members when a qualified two-thirds vote is required and a majority when only a vote of a majority of the members is required.

Section 14.2 sets out a number of decisions which cannot be taken without a qualified majority vote of two-thirds of the Members. It is not unusual for organs of the Organization to require different majorities for different types of decisions. For instance, under the OAS Charter, a qualified two-thirds majority is required to suspend a State under Article 9, to adopt the Budget under Article 55, to convoke an extraordinary meeting of the General Assembly, and to remove the Secretary General from Office.31 This Article establishes that the most serious decisions taken by the Council will also have to be adopted by a two thirds qualified majority of its members. They include the decision to suspend or reinstate a Member, to adopt the annual Budget; and to remove elected officials from office.

31 See OAS Charter, Articles 9, 55, 58, 59, and 116.

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Under Section 14.3, all other decisions shall require a majority of the Members. This is consistent with Article 59 of the Charter regarding voting in the General Assembly and Article 17 of the Permanent Council’s statute on voting.

There are no quorum and voting requirements for informal meetings under Section 14.4. The reason is that by definition, no binding decisions may be taken at informal meetings.

Section 14.5 establishes a minimum quorum of one third of the members of any Committee, subcommittee, or working group, as the requirement of a majority vote of those present for taking decisions. The rule provides that the Committee, subcommittee, or working group can adopt its own voting rules after the first meeting. This standard is adapted from Rules 44 and 57(b) of the Permanent Council’s rules regarding quorum and voting for those subsidiary organs.

Article 15. The Chair and Vice Chair

15.1 The Council shall elect its Chair at a Regular Assembly for a term of one year beginning on July 1st and ending June 30th. The Chair must be a Flag or General Officer on active duty with an IADB Member or a Civilian Official of a Member having comparable authority and knowledge of matters related to military subjects and defense, and assigned by that Member to the Board.

15.2 The Chair shall be directly responsible to the Council and shall:

a. Convoke and preside over the Assemblies and other meetings of the Council;

b. Coordinate the work of the Council;

c. Represent the IADB at the meetings of the OAS and in its external relations;

d. Preside over the IADB’s ceremonial activities; and

e. Perform such other duties as specified in these Statutes or as assigned by the Council.

15.3 The Council shall elect its Vice Chair at a Regular Assembly for a term of one year beginning on July 1st and ending on June 30th. The Vice Chair must be a Flag or General Officer of a Member or a civilian official of a Member having comparable authority and knowledge of matters related to military subjects and defense, and assigned by that Member to the Board. The Vice Chair shall:

a. Serve as advisor to the Chair;

b. Replace the Chair in the performance of the Chair’s duties when the Chair is unable to perform them or otherwise delegates them to the Vice Chair;

c. Coordinate the committees, subcommittees and working groups of the Council; and

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d. Perform such other duties as may be assigned by the Council or the Chair.

15.4 The Council may remove the Chair and/or the Vice Chair by a vote of two thirds of the Members.

15.5 The Chair and Vice Chair shall receive from the Secretariat such staff assistance as may be reasonable and necessary for the performance of their duties.

15.6 In selecting the Chair and the Vice Chair, the Council shall, to the extent feasible, follow the criteria of rotation and equitable geographic representation.

SECTION ANALYSIS

Under the Regulations currently in force, the Chair is appointed by the host country and presides over the Council, the Secretariat, and virtually all the Board’s operations. These Statutes redistribute the current Chair’s functions between the Chair and Director General (referred to in the earlier draft of the Council of Delegates as the “Executive Director”). The Chair under these Statutes would be elected by the Member States and would perform duties analogous to those that the Presidents and chairs of the other political bodies in the OAS.

As later detailed in Article 17 of these Statutes, the Director General will preside over the Secretariat and be responsible for serving the Council and implementing its directives. The role of the Director General will be very similar to that of the Executive Secretaries and Directors General of other Specialized Organizations and entities created by the General Assembly under the OAS Charter.

Section 15.1 establishes the office of the presiding officer of the Council, the Chair, and the qualifications for that office. The qualifications for the office are those suggested by the Council in its own proposed draft statutes. They provide that the Chair must have essentially the same authority and knowledge qualifications as the Chiefs of Delegation. That is important to assure respect among the Chiefs for the person who occupies that office. The Council’s proposal did not suggest a term of office for the Chair. This draft proposes that the term be for one year beginning on July 1st and ending June 30th. The reasons are several: First, a one year term allows for reasonable rotation and geographical distribution for this position over time. Second, the July 1st – June 30th dates coincide with the academic and school years at the headquarters, which should ease the family burden of the person elected to the post if he/she has school aged children. Finally, it coincides with the period in which the OAS undertakes new mandates following its General Assembly, which usually takes place in June.

The functions of the Chair are set out in Section 15.2. They are fairly customary. He/she convokes the Counsel’s Assemblies and other meetings, presides over them, and coordinates their work. He has ceremonial representational functions and represents the IADB at the OAS.

Section 15.3 establishes the functions and qualifications of the Vice Chair. The primary function of the Vice Chair, as in most positions of this nature, is to stand in for the Chair when the Chair is unavailable. He/she also serves as an advisor to the Chair and assists in coordinating the work of the Council. The qualifications are the same as those of the Chiefs of Delegation, so as to

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assure a respectful working relationship between the Vice Chair and the Chiefs and the Chair. The term of office is one year, for the same reasons given with regard to the term of the Chair.

Section 15.4 provides for the removal of both the Chair and Vice Chair from office. So serious is this decision that this Section requires that it be taken by a two-thirds vote, as does the removal of the OAS Secretary General and Assistant Secretary General under the OAS Charter.

The Chair and Vice Chair will require staff resources to exercise their duties. Section 15.5 provides for those resources.

Under Article 77 of the Charter, the principle of rotation and equitable geographical representation applies to constituting the membership of Organs of the Organization in which less than all OAS Members Participate. At times, this same principle has been adopted for other purposes, such as selecting host countries for important meetings. Although unstated, it is the underlying principle in the Permanent Council for the periodic and systematic rotation of the Chair and Vice Chair positions. Moreover, Article 12 of the Resolution AG/RES. 87 Standards for Specialized Organizations states: “For filling the elective posts in the inter-American Specialized Organizations, account shall be taken of the technical ability of the candidates and of the principles of rotation and geographical representation. Thus, those same principles should apply to the leadership of the Council of Delegates as well. That is the reason for Section 15.6.

CHAPTER VTHE SECRETARIAT

Article 16. Structure and Functions

16.1 The Secretariat shall carry out its functions through the Director General; the Sub-secretariat for Advisory Services; and the Sub-secretariat for Administration and Conference Services.

16.2 The Secretariat shall serve as the permanent administrative organ of the IADB and shall carry out the following functions:

a. Implement the resolutions, directives and other decisions of the Council;

b. Prepare the annual Program-Budget of the IADB for the Council’s approval;

c. Provide on a permanent basis adequate secretariat services for the Council, its subsidiary organs, the Chair, and the Vice Chair, and carry out their directives and assignments;

d. Provide technical advice to the Council, its subsidiary organs, the Chair, and the Vice Chair;

e. Serve as the custodian of the documents and archives of the IADB;

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f. Subject to the approval of the Council, where required, prepare and submit to the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, the Permanent Council, and other OAS organs the reports requested or required under agreements with them;

g. Establish, in accordance with guidelines established by the Council, cooperative relations with global and other regional international organizations having interests and activities in common with those of the IADB;

h. Administer the financial resources of the IADB and duly account to the Council for same;

i. Maintain cooperative relations with the OAS General Secretariat; and

j Carry out such other functions as are specified in these Statutes or as the Council may assign.

SECTION ANALYSIS

An earlier draft of these Statutes prepared by the Council of Delegates would have divided staff functions between a Secretariat and something called “the Inter-American Staff,” largely made up of advisors. We didn’t perceive any sound organizational reason for keeping the international staff outside of the Secretariat, so in Article 16.1 of these Statutes, we combined what was called the “Secretariat” in that earlier draft and the so-called “Inter-American Staff” into one single Secretariat. Besides, the term “Inter-American Staff” didn’t make much sense to us because all the staff of the Board is “inter-American”.

The single Secretariat proposed in these Statutes, like the OAS General Secretariat for the OAS under its Charter, serves as the central and permanent organ of the Board. It is divided into two sub-Secretariats – the Sub-secretariat for Advisory Services (“SAS”), made up of the so called Inter-American Staff involved in technical advisory functions: and the Sub-secretariat for Administrative and Conference Services, made up of all other military and civilian personnel” not involved in purely advisory functions. The single secretariat is under the direction control of the Director General referenced Section 16.1, who, as further specified in Section 17.1 below, is the Chief Executive Officer (“CEO”) of the Secretariat.

Article 16.2 sets out the functions of the Secretariat in some detail. These functions have been summarized from earlier drafts and enhanced based on our notion of the generic functions Secretariats perform for the other Specialized Organizations and OAS entities. They include: implementing the decisions of the Council; preparation of the draft program budget for the Council’s approval; providing secretariat services and technical advice to the Council, its officials, and its subordinate committees and other organs; serving as the custodian of the Board’s archives; preparing and submitting required reports to the Council; establishing cooperative relations subject to Council guidelines; maintaining cooperative relations with the OAS General Secretariat (“GS/OAS”); and carrying out such other functions as may be assigned by the Council.

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Article 17. The Director General

17.1 The Director General, under the supervision of the Council, shall be the legal representative of the IADB and chief executive officer of the Board, and he/she shall have the authority to direct and administer the Secretariat to carry out its functions, obligations, and responsibilities. The Director General is directly responsible to the Council and accountable to it for his/her actions.

17.2 In addition to being responsible for the functions set out in Article 17.1 above, the Director General shall, under the Council’s oversight:

a. Determine the number of Secretariat staff members; regulate their powers rights and duties, fix their remuneration, and appoint and remove them, in accordance with the annual Program Budget and other resolutions of the Council;

b. Participate in the meetings of the Council with voice but without the right to vote;

c. Provide the Council with reports and information relating to the IADB’s activities and relations with other organizations, as requested;

d. Sign and execute cooperation agreements with other organizations in accordance with guidelines established by the Council;

e. Administer and enforce compliance with the IADB’s Rules, Regulations, and the other decisions of the Council;

f. Reorganize the Secretariat by eliminating, adding, combining, or subdividing offices, as the case may be, to maximize efficiencies;

g. To contract for goods and services for the Secretariat within the limitations of the Program-Budget and other decisions of the Council;

h. To supervise and take responsibility for the technical advisory and consultancy services provided by the Secretariat;

i. Issue Executive Orders and other administrative issuances for the purpose of carrying out the functions stated herein;

j. Carry out such other duties as the Council may assign.

17.3 The Director General may delegate functions and grant powers to other staff members of the Secretariat but shall remain responsible to the Council for all actions taken pursuant to such delegations.

17.4 The Director General shall be a Flag or General officer, or a Civilian Official of comparable authority of an IADB member State having comparable knowledge of military, defense and related [similar] matters, and must be assigned by that Member State to the Board. He/she shall

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be elected by the Council at an Assembly by a majority vote of its Members for a term of up to four years, renewable for one additional term of up to four years. The Director General is directly responsible to the Council and may be removed by the Council by a two thirds vote of its members.

SECTION ANALYSIS

Section 17.1 recognizes the Director General as the legal representative of the Board and Chief Executive Officer of the Secretariat. It further vests the Director General with the authority to carry out the duties of the Secretariat and makes him/her directly responsible and accountable to the Council. This provision is analogous to Article 109 of the OAS Charter, with regard to the Secretary General’s responsibilities as the legal representative of the OAS General Secretariat and chief executive officer,32 as well as Article 20 of the IICA Convention, regarding the IICA Director General’s duties and scope of authority.33

The decision to call the chief executive officer of the Secretariat the “Director General” is based on the practice of giving that title to the chief executive officers of other Specialized Organizations and entities. Of the six Specialized Organizations, only one, the Chief Executive Officer of the Commission of Women,34 has a different title. None have the title of “Executive Director,” which was the title proposed an earlier version of these Statutes prepared by the Council.

Section 17.2 sets out the specific functions of the Director General It is based on similar provisions in the OAS Charter and General Standards35 and IICA’s Convention and Rules of Procedure regarding the functions and authority of the OAS Secretary General and IICA Director General, respectively.36 There is nothing unusual in this list of functions. As the chief executive

32 Article 109 states: “The Secretary General shall direct the General Secretariat, be the legal representative thereof, and notwithstanding the provisions of Article 91.b [of the Charter], be responsible to the General Assembly for the proper fulfillment of the obligations and functions of the General Secretariat.”33 Article 20 provides: “The Director General, under the supervision of the Board, shall have the legal representation of the Institute, and the responsibility to administer the General Directorate in order to carry out its functions and obligations . . . .”34 The CEO of CIM is called the “Executive Secretary” under Article 26 of its Statute.35 For the OAS Secretary General see OAS Charter Articles 109 – 113 and Article 12 of the General Standards. For the IICA Director General, see 36 For example, Article 20 of the IICA Convention goes on to enumerate the Director General’s authority as follows:

. . . The Director General shall have the following specific functions, which shall be performed in accordance with the standards and regulations of the Institute and the corresponding budgetary provisions:

a. To administer the financial resources of the Institute, in accordance with the decisions of the Board;b. To determine the number of staff members; regulate their powers, rights, and duties; fix their remuneration; and to appoint and remove them, in accordance with the standards established by the Board or the Committee;c. To prepare the proposed biennial program-budget and to submit it to the Committee, with the observations and recommendations of the latter, to the Board;d. To present to the Board or to the Committee in the years in which the Board does not meet an annual report on the activities and financial condition of the Institute;e. To establish the relations for cooperation and coordination provided for in Article 4(c) [of the Convention]; and

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officer, she/he has the authority to hire and fire staff and organize the Secretariat, always subject to guidelines and supervision of the Council. He/she has the authority to contract for goods and services, sign cooperation agreements, and participate in the Council’s meetings, with voice but without vote. Finally, he/she shall have supervisory authority over and responsibility for advisory and consultancy services provided by the Secretariat.

Section 17.3 confers upon the Director General the authority to delegate. Under common law, this authority is assumed, but sometimes civil lawyers come with a different perspective. For that reason, it is advisable to include a specific authority to delegate in the Statutes. For example, Article 7 of the IICA Rules of Procedure of the General Directorate confers a similar authority upon the IICA Director General.37

Section 17.4 establishes the qualifications for the Director General and the method of appointing him/her. The qualifications are identical to those required of the Chair, to assure mutual respect and facilitate interaction with the Chair and Chiefs of Delegation.

The method of election and the issue of whether the position of Director General (“DG”) should be fully democratized was at one time a topic of debate. The emerging consensus is reflected in this text – election by the Assembly of Delegates.

Furthermore, in Section 17.4, we have specified that the DG would serve for a term of up to four years. The “up to” language would allow the Board to decide how long the term should be in each case. It could be eliminated to allow for greater regularity. Also, “four years” is only a suggestion. In IICA, the term of the DG is four years. Four years is also the term of the DG of the Inter-American Agency for Cooperation and Development and the initial term of the DG of the Inter-American Children’s Institute.

Article 18. Sub-secretariat for Advisory Services

18.1 The Sub-secretariat for Advisory Services (“SAS”) shall provide technical advice to the Council and other areas of the Secretariat in military, defense, and related [similar] matters.

18.2 SAS shall have a Director, who shall be a Flag or General officer from an IADB Member or a Civilian Official of comparable authority having comparable knowledge of military, defense, and related [similar] matters, and be assigned by that Member to the Board. The SAS Director shall be elected by the Council at an Assembly by a majority vote of its Members for a term of up to four years, renewable for a term of up to four years. The SAS Director may be removed by the Council at an Assembly by a two thirds majority vote of its Members.

18.3 The SAS Director is responsible to the Director General , consistent with the guidelines and policies established by the Council;

f. To participate in the meetings of the Board and the Committee but without the right to vote.

37 Article 7 states: “The Director General may delegate functions and grant powers to other employees of the Institute when he/she deems this advisable, assuming the full responsibility for such delegations.”

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18.4 In addition to the Director, SAS shall contain staff assigned by the members to the Board for the purpose of providing technical and advisory support to the Council and other organs of the IADB.

18.5 The SAS Director may appoint a Vice Director from the SAS staff to assist him/her in the performance of the SAS Director’s functions. The Vice Director shall be a military officer of a Member having the rank of Captain/Colonel, or a civilian official of a Member having comparable authority and knowledge of military, defense, and related [similar] matters, and shall be assigned by that Member to the Board.

SECTION ANALYSIS

The purpose of the Sub-secretariat for Advisory Services (“SAS”), as stated in Section 18.1, is to provide the Council with technical advice on “military subjects and defense matters.” It is the substantive “think tank” of the Board, and has no responsibility for executing administrative actions other than those relating to its own internal operations as part of the Secretariat.

SAS performs its functions through its Director and its staff – what was referred to in earlier drafts as “the Inter-American staff”. The Director is the same official identified as “the Director of the Inter-American Staff” in an earlier draft of these Statutes proposed by the Council. As provided in Section 18.2, the Director has the same rank and qualifications as required of the Director General so as to assure mutual respect and efficiency in interacting with the Delegations and supervising the senior military offices and civilian personnel who may be assigned to the staff. The position has been fully democratized insofar as the Director is elected by the Council.

A four-year term of office for the Director has been proposed to conform with the proposed length of term for the DG under these Statutes. But we have no preference as to the term length one way or the other. We just believe the length of term should be defined in these Statutes.The SACS Director is responsible solely to the Director General, who in turn is responsible directly to the Council for the technical advisory and consultancy services provided by the Sub-secretariat.

Section 18.4 simply provides that the SAS shall have a Staff to assist the Director in his duties. Section 18.5 allows the Director to appoint a Vice Director with corresponding authority and knowledge requirements defined by the Council in an earlier draft of these Statutes.

Article 19. Sub-secretariat for Administrative and Conference Services

19.1 The Sub-secretariat for Administrative and Conference Services (“SACS”) shall be responsible for providing the Director General with all the support for performing all the functions assigned to the Secretariat under these Statutes other than the technical advisory functions assigned to SAS.

19.2 SACS shall have a Director, who shall be a Flag or General officer from an IADB Member or a Civilian Official having comparable authority and comparable knowledge of military, defense, and related [similar] matters, and be assigned to the Board by that Member. The SACS

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Director shall be elected by the Council at an Assembly by a majority vote of its Members for a term of up to four years, renewable for a term of up to four years. The SACS Director may be removed by the Council at an Assembly by a two thirds majority vote of its Members.

19.3 The SACS Director is responsible to the Director General, consistent with the guidelines and policies established by the Council

19.4 In addition to the Director, SAS shall contain professional and other support personnel with the skills necessary for the performance of its functions.

19.5 The SACS Director may appoint a Vice Director from the Inter-American Staff to assist him/her in the performance of the SACS Director’s functions. The Vice Director shall be a military officer of a Member with the rank of Captain/Colonel, or a civilian official of a Member with comparable authority and knowledge of military, defense, and related [similar] matters, and must be assigned by that Member to the Board.

SECTION ANALYSIS

This Article spells out in more detail the organization and functions of the Sub-secretariat for Administrative and Conference Services (“SACS”). As Section 19.1 states, SACS performs all the non-technical advisory functions of the Secretariat. That is, it is responsible for providing translation, interpretation, and room attendants for the Council; it is also responsible for doing all the administrative tasks necessary for operating the building; paying the bills; preparing administrative and financial reports; attending to the transactions for managing and administering personnel; carrying out the activities required under the Board’s arrangements for cooperative relations; providing protocol services, etc.

SACS consists of its Director and its staff. The Director has essentially the same functions attributed to the official called “the Secretary” in a prior draft of these Statutes proposed by the Council. Section 19.2 establishes the qualifications of the SACS Director. They are similar to those of the Director General to assure the necessary respect over the senior officers and civilian personnel who will make up part of the Secretariat staff and to facilitate relations with the delegations. Like the Director of SAS, the SACS Director is elected by the Council. The SACS Director is responsible solely to the Director General, who in turn is responsible directly to the Council for the management of the Secretariat.

A four-year term of office for the Director has been proposed to conform with the proposed length of term for the DG under these Statutes. But we have no preference as to the term length one way or the other. We just believe the length of term should be defined in these Statutes.

Section 19.4 recognizes that SACS will also have a staff to assist the Director in carrying out the areas functions and responsibilities. Section 19.5 allows the Director to appoint a Vice Director, in accordance with authority and knowledge requirements suggested by the Council in an earlier draft of these Statutes.

Article 20. Human Resources

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20.1 The Secretariat may obtain human resources by either retaining the services of staff members or of independent contractors.

a. Staff members of the Secretariat shall include only those persons designated as staff members in their letters of appointment with the IADB. They shall either be contracted directly as employees or they shall be military and civilian employees of the members provided by them to the IADB under secondment arrangements.

b. Independent contractors are persons, legal and natural, contracted to provide work products or services to the Secretariat, normally on a short and temporary basis, under a performance contract. They are not personnel or employees of the Secretariat, and a performance contract does not create an employment relationship between the Secretariat and a person.

20.2 In selecting the staff of the Board, first consideration shall be given to efficiency, competence, and integrity, but at the same time, in the recruitment of personnel of all ranks, importance shall be given to the necessity of obtaining as wide a geographic representation as possible.

20.3 In the performance of their duties, the staff members of the Secretariat shall not seek or receive instructions from any government or any authority outside the Board, and shall refrain from any action incompatible with their position as officers of an international organization responsible only to the Board.

20.4 All Secretariat staff members are accountable to their functional immediate supervisors for their actions.

[20.520.5 Staff members of the IADB are not staff members of the OAS General SecretariatStaff members of the IADB are not staff members of the OAS General Secretariat (“GS/OAS’) and are not entitled to the benefits conferred upon GS/OAS staff members under the(“GS/OAS’) and are not entitled to the benefits conferred upon GS/OAS staff members under the OAS General Standards, OAS Staff Rules, and resolutions of the OAS General Assembly; however,OAS General Standards, OAS Staff Rules, and resolutions of the OAS General Assembly; however, staff members of the IADB may be temporarily designated Associate Staff Members of the Generalstaff members of the IADB may be temporarily designated Associate Staff Members of the General Secretariat under the applicable OAS General Standards and staff rules governing Associate StaffSecretariat under the applicable OAS General Standards and staff rules governing Associate Staff Members and staff members of either organ may be seconded to the other in accordance with theirMembers and staff members of either organ may be seconded to the other in accordance with their respective rules.respective rules.|

SECTION ANALYSIS

Those Specialized Organizations and entities that use the staff of the General Secretariat as their own Secretariats do not have to treat staffing questions in their Statutes. All are covered by the OAS Charter provisions on GS/OAS, the General Standards, and the GS/OAS Staff Rules. For that reason there is little in the CIM and IIN Statutes regarding staff. On the other hand, the basic documents of IICA, which like the Board, has its own Secretariat staff, contain general provisions pertinent to staffing. Thus, as was done in the OAS Charter for the Secretariat Staff38 and for the IICA staff under the IICA Convention,39 we have included in these Statutes provisions for the staff of the Secretariat.

38 See OAS Charter, Articles 118-20, 137.39 See IICA Convention, Articles 21 and 22.

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This Section 20.1 commences with a definition of the human resources available to the Board. It is derived from Article 17 of the OAS General Standards, which represents the OAS’ most recent thinking on the subject. The resources are of two types: Staff members, who are employees in a labor relationship and entitled to the minimum entitlements of employees under applicable law; and independent contractors, who are normally consultants and other persons retained temporarily to perform a specific task or produce a defined product – without substantial direction or supervision by Secretariat staff. Part a of Section 20.1 recognizes that there are two kinds of staff at the Board: those military and civilian officials seconded by Members to the Board and those civilian employees directly contracted by the Secretariat.

Section 20.2 is virtually copied from Article 120 of the OAS Charter. A similar provision is contained in Article 21 of the IICA Convention. It establishes objective standards for the recruitment of the Secretariat’s staff. Finally, Article 13 of the Resolution AG/RES. 87, Standards governing the Specialized Organizations, provides guidelines for staffing those Organizations and incorporates that very same language.

Section 20.3 is adapted from Article 118 of the OAS Charter. It is also virtually identical to Article 22 of the IICA Convention. It is a conflict-of-interest standard which requires the staff of the Secretariat to work in the interest of the Institute, not in the interest of any single Member or group of Members.

Section 20.4 is derived from the Council’s prior draft proposed Statutes. It establishes a chain of responsibility for the staff of the Secretariat.

CHAPTER VITHE INTER-AMERICAN DEFENSE COLLEGE

Article 21. Purpose

21.1 The purpose of the Inter-American Defense College (“the IADC” or “the College”) is to develop and provide opportunities for advanced academic study of military and defense-related subjects, the Inter-American System, and related academic disciplines to military and civilian governmental officials.

SECTION ANALYSIS

Article 21 simply defines the College’s purpose or what some delegations refer to as “the mission.” This statement of purpose is not derived from any single document. Rather it builds on a statement of “mission” provided in the Council’s earlier draft of these Statutes and the mission statement in the Board’s current Regulations.40 It also attempts to reconfirm the statement of Purpose of the Board in Article 2 of these Statutes, which makes reference to the College’s role in

40 Article 28 of the IADB’s current regulations defined the College’s mission as follows: “To function as a military institution for advanced studies, with the purpose of preparing military personnel and civilian officials of the American States through the study of the Inter-American System and the political, social, economic, and military factors that constitute essential elements for the defense of the Hemisphere.”

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providing education to military offices and civilian officials on military, defense, and related [similar] matters.

Aside from recognizing the College’s core area of competence in military, defense, and related [similar] areas, Section 21 also takes into account that the College has offered other courses considered essential as part of the education of military offices and civilian officials dealing with defense-related issues. They include international relations, economics, political science and other social sciences. The statement of purpose is not unduly restrictive, and would allow the Board to offer courses in other related disciplines.

Article 22. The IADC Director

22.1 The IADC shall have a Director, who shall be a military Flag or General Officer of an IADB Member or a Civilian Official having comparable authority and knowledge of matters related to military subjects and defense, and assigned by that Member to the College. The IACD Director shall be elected by the Council in an Assembly by a vote of a majority of its Members for a term of at least four years, renewable for an additional term of at least four years. He/she may be removed by the Council by two thirds majority vote of its Members.

22.2 The IADC Director is responsible to the Council for the management of the IADC, in accordance with guidelines and policies established by the Council of Delegates.

SECTION ANALYSIS

This Article establishes the position of Director of the College. Like other provisions of this Statute, it represents a departure from current practices. Under the present Board Regulations, the Director of the College is “designated by the host country.” Section 22.1 of these new Statutes would democratize the position. Specifically, as recommended by the Council in an earlier draft of theses Statutes, this article provides for the election and/or removal of the Director by the Council.

Section 22.1 establishes a four-year term of office for the Director. But we have no preference as to the term length one way or the other. We just believe the length of term should be defined in these Statutes.

Section 22.2 sets out the scope of authority and responsibility of the Director. He, not the Director General, is responsible for the management of the College, in accordance with the guidelines established by the Council. His/her line of responsibility runs directly to the Board, not to the DG. This makes sense for two reasons. First, the College is an Organ separate from the Secretariat. Second, it complements the efforts to democratize the Board.

Article 23. Other IADC Officials

23.1 The Council shall elect by a vote of a majority of its Members both an IADC Vice Director and a Chief of Studies. The duties of those officials shall be established by the IADC Director, in consultation with the Council. Both officers shall be directly responsible to the IADC Director.

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23.2 Both the IADC Vice Director and the Chief of Studies shall be Flag or General Officers of a Member, or civilian officials of Member having comparable authority and knowledge of matters within the competence of the IADC, and they must be assigned by that Member to the College. They may be removed from office by the Council by a two thirds majority vote of its Members.

SECTION ANALYSIS

Article 23 is adapted from an earlier draft of these Statutes proposed by the Council, which would establish these two positions for the College. In this subsequent text, we have emphasized the line of responsibility of these officials to the College Director, and provided that the Council may not only appoint them, but remove them as well.

The position of Vice Director is essentially what is currently the Chief of the Department of Administration under the current Regulations. Under those Regulations he/she is appointed by the host country.

Article 24. Human Resources and Facilities

24.1 The provisions set out in Article 20 governing the human resources of the IADB Secretariat shall apply equally to the staff of the IADC.

24.2 Arrangements for the occupancy of facilities and use of equipment and supplies provided by the headquarters country to the IADC shall be concluded by the IADC Director, in consultation with the Director General and the Council, and shall be revised and updated periodically as required.

SECTION ANALYSIS

The purpose of this Section 24.1 on Human Resources is to assure consistency between the personnel policy of the Secretariat and the College, in accordance with common international standards. It simply provides that the same general concepts regarding personnel shall apply equally to the College and the Board.

Section 24.2 recognizes the need to institutionalize the College’s relationship with the headquarters country regarding facilities and supplies. It charges the IADC Director with clarifying and coordinating the use and occupancy of the facilities and the provision of supplies with the pertinent authorities of the headquarters country, in consultation with the Director General and the Council.

CHAPTER VIIFINANCIAL RESOURCES

Article 25. Contribution from OAS Regular Fund

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25.1 To the extent provided in its Agreement with the OAS, the IADB shall receive an annual contribution under the annual Program-Budget approved by the OAS General Assembly.

SECTION ANALYSIS

The Ninth International Conference of American States which created the OAS in 1948 also adopted Resolution VII which stated that the Budget of the OAS “shall include the funds required by the Secretariat of the Inter-American Defense Board.” Nonetheless, that directive was not included in the Charter, and there is nothing in the Charter which requires the OAS General Assembly to consider funding the Board indefinitely. If the founding Member States had intended the obligation to be permanent, they would have placed it in the Charter. Because it is in a resolution, it can be modified by the General Assembly, the institutional successor to the International Conferences of American States, which disappeared with the entry into force in 1971 of the amendments to the 1948 OAS Charter under the Protocol of Buenos Aires.

Section 25.1 recognizes that the Board shall receive a contribution under the Regular Fund Budget of the OAS. Nonetheless, it makes the contribution subject to the approval of the OAS General Assembly and uses the permissive “may” instead of the obligatory “shall” in light of the foregoing explanation. There has been some discussion in the consultations whether this should remain an obligation of the Regular Fund, as proposed, here, or whether it should be discretionary, by use of the word “may” instead of “shall”. In the final analysis, it doesn’t really matter. If the General Assembly wants to eliminate the obligation, all it needs to do is change the Statute, and pending that, it can reduce the contribution to a nominal sum.

Article 26. Voluntary Contributions

26.1 Voluntary contributions from members and other donors constitute a significant source of funding for the IADB. The Secretariat shall deposit those contributions in specific funds or trust funds, in accordance with the requirements of the donor and guidelines established by the Council.

SECTION ANALYSIS

Article 26 recognizes the importance of voluntary contributions in financing the activities of the Board. Like the GS/OAS’ General Standards, it provides for the deposit of those contributions in specific funds or trust funds, pursuant to donor requirements and guidelines adopted by the Council. A preliminary proposal to create another fund supported by obligatory assessments was not well received and we decided not to include it in this draft.

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Article 27. Financial Rules and/or Guidelines

27.1 To assure transparency and orderly conduct in the conduct of the Board’s business and management of its resources, the Council shall adopt and amend, as necessary, Financial Rules, guidelines, and other necessary regulations for the management and proper control of the IADB´s resources in accordance with commonly accepted standards.

SECTION ANALYSIS

The purpose of this Article is to remind the Board that it is responsible for providing Financial Rules and other financial and resource management guidelines consistent with commonly accepted practices. Provisions of this nature give confidence to potential donors.

[CHAPTER VIIIRELATIONS WITH OTHER OAS ORGANS

Article 28. Use of GS/OAS Building at 2600 16th Street

28.1 The OAS General Secretariat (“GS/OAS”) shall allow the IADB to occupy and operate as its headquarters the property known as “Casa del Soldado,” currently owned by GS/OAS, located at 2600 16th St., N.W., Washington, D.C., for as long as GS/OAS owns that property, subject to the Board’s agreement to assume responsibility for repairs and maintenance of the property, together with other costs related to its use, and subject to the needs of GS/OAS.

SECTION ANALYSIS

For more than fifty years, the Board has occupied a building owned by the OAS General Secretariat (“GS/OAS”) on Sixteenth Street and known as the “Casa del Soldado”. This is an historic structure built around the same time as the OAS Main Building. In 1986, both the Board and the Secretariat contributed to the costs of constructing a ten thousand square foot modern addition to the building and renovating parts of the original structure. Like the OAS Main Building, the historic part of the Casa del Soldado houses a decorative plaster ballroom and offices. The newer addition contains conference facilities and more modern offices, as well as limited parking facilities. Because the Casa del Soldado belongs to GS/OAS, it is protected under Article I of the Headquarters Agreement between the OAS and the United States of America and constitutes, under Annex A of that Agreement, part of the OAS Headquarters.

This Section recognizes the IADB’s occupancy of the Casa del Soldado. Moreover, it reiterates the de facto situation that has existed during that last fifty years with respect to that occupancy. That is, the IADB occupies those premises at the pleasure of the GS/OAS and subject to the understanding that the Board’s willingness to assume responsibility for repairs, maintenance, and other costs related to its use of the property. The continuation of the Board's occupancy shall depend on whether the GS/OAS continues to own the premises, GS/OAS’s other needs, and the Board’s compliance with the responsibility it has assumed. The Board’s tenancy shall not interfere with the right of the OAS to sell or lease the Casa del Soldado, or use all, or part of it, for other purposes

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Article 29. Reports to Other OAS Organs

29.1 Each year, the Board shall send its Annual Report on its activities and budget to the General Assembly, though GS/OAS, in accordance with such requirements as established by the OAS General Assembly and Permanent Council.

29.2 The Board shall prepare and send to the other organs of the OAS such other reports they may request on its activities.

SECTION ANALYSIS

There is no General Assembly Resolution for entities, similar to Resolution AG/RES. 87 for the specialized organizations, which sets out requirements for the “other entities” mentioned in the final paragraph of Article 51 of the Charter. Nonetheless, Articles 54(f) and 91(f) of the Charter make reference to the annual reports submitted to the General Assembly by the entities, and from those articles a duty to submit the reports can be applied. Lest there be any doubt, however, we have included in Article 31 affirmative reporting requirements here for the Board. They are similar to those found in Part VIII of the AG/RES. 87 Standards for the specialized organizations.

Article 30 Official Correspondence Between the IADB and other OAS Organs

30.1 All official correspondence from the IADB to the OAS General Assembly, the Meeting of Consultation, the OAS Permanent Council, and GS/OAS shall be addressed to the OAS Secretary General. The correspondence from the IADB to all other OAS organs shall be addressed to the chief executive officers of those organs.

30.2 All official correspondence from OAS and its other organs to IADB shall be addressed to the Chief Executive Officer of the Board, currently known as the “Director General”.

SECTION ANALYSIS

Sections 30.1 and 30.2 are intended to assure that correspondence between the organs of the Organization and the Board reaches the appropriate destination. The provision in Section 31.1 requiring that correspondence from the Board to the OAS General Assembly, Meeting of Consultation, and Permanent Council be directed first to the Secretary General reflects article 28 of the AG/RES. 87 Standards, which provides that all such correspondence be directed through the General Secretariat. There is no reason why it should not apply for entities as well.

Article 31. Coordination

31.1 The programs and activities of the IADB shall avoid duplication of effort and expenditures and shall be complementary to the activities carried out by the other OAS organs.

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31.2 To further coordination with other OAS organs, the Board shall participate as a member of the Committee to Coordinate Cooperation Programs of the Inter-American System and shall comply with its recommendations.

31.3 The Board shall regularly exchange information with the GS/OAS, the OAS Permanent Council, and the corresponding subsidiary organs of the Permanent Council, the Inter-American Committee against Terrorism, the Inter-American Drug Abuse Control Commission, the Department of Multidimensional Security, and other OAS organs and GS/OAS dependencies engaged in matters of mutual interest. Similarly, those OAS organs shall regularly exchange information of mutual interest with the Board. Information exchanged shall include, for example, notice of upcoming meetings with their agendas, technical materials of mutual interest, copies of draft resolutions, tentative meeting agendas, and final meeting reports.

31.4 The Chair of the Board’s Council of Delegates, the Vice Chair, the Director General of the Board Secretariat, and the Director of the Inter-American Defense College may attend sessions of the OAS General Assembly and meetings of the other OAS organs and entities with the right to speak, in accordance with the applicable rules of procedure. Similarly, the OAS Secretary General, the Chair of the OAS Permanent Council, and other ranking officials of other OAS organs may attend the Assemblies and other public meetings of the Board’s Council of Delegates with the right to speak, in accordance with the applicable rules of procedure.

31.5 The General Assembly, the OAS Councils, and the Board may formulate recommendations among each other concerning the inclusion of items on the agenda of their respective meetings and conferences, to the extent permitted under the applicable rules of procedure.

31.6 The Board and other OAS organs shall exchange publications of mutual interest.

31.7 The Board Secretariat and GS/OAS shall exchange administrative information.

SECTION ANALYSIS

Article 31 attempts to set out the basic principles governing cooperation and coordination between the Board and OAS organs and between the Board and other entities. It incorporates provisions from the AG/RES. 87 Standards, as well as provisions from similar agreements between the OAS and other Specialized Organizations – The Pan American Institute for Geography and History (“PAIGH”), the Inter-American Institute for Cooperation on Agriculture (“IICA”), and the Inter-American Children’s Institute (”IIN”). In light of the functional similarities between entities and several of the specialized organizations, there is no reason why the provisions for coordination that apply to the specialized organizations should not apply to the “other entities,” like the Board, as well.

Section 31.1 reflects the mandate against duplication of activities set out in Article 17 of the AG/RES. 87 Standards. It is also similar to Article 5 in the IICA, PAIGH, and IIN Agreements.41

41 For example, Article 5 of the Agreement with PAIGH states: “The programs and activities of the Institute and of the Organization shall be accomplished within a framework that avoids duplication of efforts and the duplication of expenditures and shall facilitate the implementation of the activities of the Institute, of the General Secretariat and of the other organs of the Organization.”

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By Resolution AG/RES. 1666 (XXIX-O/99), the General Assembly created The Committee to Coordinate Cooperation Programs of the Inter American System.42 All the Specialized Organizations, together with several important entities, such as CICAD, CITEL, and the Inter-American Human Rights Commission, are members under the terms of that Resolution.43 In the event the Board becomes either a Specialized Organization or an Entity, it should be a member too. That is the reason for Section 31.2.

The intention of Section 31.3 is to encourage the sharing of information between the Board and other OAS organs. This is particularly important with regard to those organs with which the Board has common interests – the Inter-American Committee against Terrorism (“CICTE”), the Inter-American Drug Abuse Control Commission (“CICAD”), the OAS Permanent Council, and the Department of Multidimensional Security. The information to be exchanged includes, among others, meeting dates and agenda, technical reports, draft resolutions, and final meeting reports.44

Article 26 of Resolution AG/RES. 87 provides that representatives of the Specialized Organizations may attend the meetings of other organs of the Organization, subject, of course, to the rules and regulations of those other organizations. It states:

The Inter-American Specialized Organizations that have a specific interest in the agenda to be discussed at a meeting of another organ of the Organization may be represented at the meeting, with voice but without vote. In turn, the other organs of the Organization may be represented at meetings of the inter-American Specialized Organizations with voice but without vote. In both cases, the corresponding rules of procedure shall be observed.

There is no reason why representatives of the Board should not have a similar privilege. Article 12 of the IICA/OAS Agreement, Article 11 of the PAIGH/OAS Agreement, and Article 10 of the IIN/OAS Agreement have similar language.45

Section 31.5 would allow the Board and other OAS Organs to make recommendations to each other for inclusion of agenda items in their respective meetings. This reflects Article 24 of the AG/RES. 87 Standards, which states: “The General Assembly, the Councils of the Organization of American States, and the inter-American Specialized Organizations may make recommendations to each other for the inclusion of topics on the agendas of their respective conferences and meetings.”46 Again, there is no reason to treat the Board differently in this regard.

42 To date, this Committee has not convened. Nonetheless, in the event the Secretary General should decide to activate it as a coordination mechanism for the OAS, the Board should be part of it.43 There is even one non-OAS member, the Inter-American Development Bank.44 Similar provisions are contained, for example, in Articles 8 and 9 of the PAIGH/OAS Agreement, and Articles 9 and 10 of the IICA/OAS Agreement, and Articles 7-9 of the IIN/OAS Agreement.45 For example, Article 11 states:

The representatives of the Institute may attend, with voice but without vote, meetings of the General Assembly and of other organs, organizations and entities of the Organization. On the other hand, the organs of the Organization may send representatives to the meetings of the Institute, with voice but without vote. In both cases, the respective normal procedures shall be followed.

46 Article 10 of the PAIGH/OAS Agreement, Article 11 of the IICA/OAS Agreement, and Article 9 of the IIN/OAS Agreement have similar language.

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The exchange of publications is basic to any type of cooperative relationship. Section 32.6 provides for such exchange between the Board and other OAS organs. A similar provision is contained in Article 12 of the PAIGH/OAS Agreement, Article 13 of the IIN/OAS Agreement, and Article 13 of the IICA Agreement.47

Article 18(a) of the AG/RES. 87 Standards requires the Specialized Organizations to exchange “information at the administrative level” with GS/OAS. A similar requirement should be imposed on the Board as well, because of close administrative relationship to GS/OAS. For example, GS/OAS disburses the monies it receives from the Regular Fund, administers services to the Casa del Soldado, and helps the Board administer its tax reimbursement program. Section 312.7 recognizes that relationship and thus imposes a duty to exchange information in relation thereto].

CHAPTER VIII[IX]MISCELLANEOUS PROVISIONS

Article 28[32]. Headquarters and Privileges and Immunities

28.1[32.1] The headquarters of the IADB is in Washington, D.C., United States of America, where it currently has the status of a public international organization and its own legal personality under the laws of the host country.

28.2[32.2] The privileges and immunities enjoyed by the IADB and its staff members in the OAS Member States are determined in accordance with the corresponding provisions of the OAS Charter, the laws of those States, and the agreements concluded between them and the OAS or the Board.

28.3[32.3] As provided under the laws of its Members and the agreements referenced above, the IADB may enter into and carry out contracts or agreements, hold funds, real property, movable property and purchase, sell lease, improve, or operate any goods or property under its own legal personality.

28.4[32.4] The privileges and immunities of the Delegations of the Members to the Council at headquarters shall be those as provided in the applicable legislation of the headquarters country and the corresponding agreements between the headquarters country and the OAS.

SECTION ANALYSIS

Privileges and immunities, including the recognition of legal personality for conducting business, are essential for the functioning of public international organizations like the Board. The topic of privileges and immunities is customarily included in the legal instruments under which public international organizations are constituted.48 For that reason, we have included this Article on Privileges and Immunities and the headquarters in these Statues.

47 The corresponding provision of the PAIGH/OAS Agreement states: “The Organization and the Institute shall establish a broad exchange of their publications.”48 See, e.g., Articles 26-30 of the IICA Convention; Articles 132-36 of the OAS Charter.

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Section 28.1[32.1] establishes that the headquarters of the Board is in Washington, D.C., where it has been for more than fifty years. It also recognizes the fact that by Executive Order 10228 (March 26, 1951) and under the International Organizations Immunities Act of 1945 (“IOIA”), the headquarters government has recognized the legal personality of the Board. Unlike the OAS, however, the Board does not have a bilateral headquarters agreement with the Government of the United States of America. Moreover, it cannot be sheltered by the OAS Headquarters Agreement because it is not dependent on the OAS General Secretariat for the provision of permanent secretariat services. Thus, its recognition as a public international organization with privileges and immunities under the IOIA is unilateral and could be withdrawn by the host country at will.

Section 28.2[32.2] reaffirms that the privileges and immunities enjoyed by the Board will depend on multilateral agreements, bilateral agreements, and the internal laws of the Member States. The Board already enjoys extensive privileges and immunities in the headquarters country as a result of the aforementioned legislation and Executive Order. As an OAS Organ, it will become entitled to the privileges and immunities that attach to all OAS Organs under the Multilateral Agreement on Privileges and Immunities currently in force in Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Haiti, Honduras, Nicaragua, Paraguay, Peru, and Uruguay. That agreement gives extensive privileges and immunities to the General Secretariat and somewhat less extensive privileges and immunities to other OAS organs. The Board will have to negotiate individual agreements with its Members for more.

Section 28.3[32.3] recognizes the Board’s authority to enter into valid contracts and to hold property, to the extent its legal personality is recognized in the Member States. Section 28.4[32.4] provides that the delegations will have the privileges and immunities provided by the host country, which as of the date of this proposed draft Statute, include those conferred on delegations to other international organizations under the aforementioned International Organizations Immunities Act.

Article 29[33]. Anti-Discrimination

29.1[33.1] The IADB shall not allow for any restriction based on race, creed, or gender with respect to eligibility to participate in the activities of the IADB or to hold positions therein.

SECTION ANALYSIS

This anti-discrimination prevision is boilerplate language taken almost verbatim from Article 137 of the OAS Charter. Article 137 applies to all OAS organs, but it is so important that we recommend that it be repeated here as well.

Article 30[34]. Internal Law and Amendments to Statutes

30.1[34.1] The hierarchy of norms within the Board shall be as follows: The highest authority is the OAS Charter, followed in descending order by the resolutions of the OAS General Assembly, next by the resolutions of the Meeting of Consultation of Ministers of Foreign Affairs, next by the resolutions of the OAS Permanent Council within its area of competence with respect to the Board, next by the resolutions (including Rules of Procedure, Staff Rules and Financial Rules) and other decisions of the Assemblies of the Council of Delegates, and finally by the administrative

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issuances of the Director General and of the Director of the IADC, each within their respective areas of competence.

30.2[34.2] Because these Statutes require the approval of the OAS General Assembly to enter into force, they have the status of a resolution of the General Assembly in the internal law of the Board.

30.3[34.3] These Statutes may be amended only by the OAS General Assembly, upon its initiative or upon the recommendation of the Permanent Council. The OAS Permanent Council, upon its own initiative or upon the recommendation of the IADB Council of Delegates, may propose amendments to these Statutes for the OAS General Assembly’s consideration.

SECTION ANALYSIS

This final Article has three purposes. First, it reaffirms the political and juridical subordination of the Board to the three civilian OAS bodies which take decisions on military, defense, and related [similar] matters in the hemisphere: the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, and the Permanent Council. Second, it establishes a legal hierarchy or pyramid of norms within the Board. Third, it lays out the roadmap for amending these Statutes.

The highest authority, as it is for all OAS Organs, save for those which were created under other inter-American Treaties, is the OAS Charter. That is followed by the resolutions of the General Assembly, and in the case of the Board, by those of the Meeting of Consultation of Ministers of Foreign Affairs and of the Permanent Council within its area of competence with respect to the Board. Next on the legal hierarchy are the decisions of the Board, taken in its resolutions, directives, and other issuances. The Council’s Rules of Procedure and the Rules it adopts for the Secretariat, including Staff Rules and Financial Rules, have the legal status of decisions of the Council. Next will follow the administrative issuances of the Director General, and Director of the College, within their respective areas of competence. This legal hierarchy is set out in Section 30.1[34.1]

Section 30.2[34.2], establishes that these Statutes have the legal status of a resolution of the General Assembly. Thus, it follows, as stated in Section 30.3 [34.3], that they can only be amended by the OAS General Assembly pursuant to its function under Article 54(a) of the Charter “ To decide the general action and policy of the Organization, determine the structure and functions of its organs...”

Consistent with the supreme power of the General Assembly, Section 30.2[34.2] recognizes the General Assembly’s authority to amend the Statutes on its own initiative. But it also recognizes the authority of both the Permanent Council and the Council of Delegates, through the Permanent Council, to recommend proposed amendments to the General Assembly.

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MODEL I: SPECIALIZED ORGANIZATION

DRAFT RESOLUTION

ESTABLISHMENT OF THE INTER-AMERICAN DEFENSE BOARD AS A SPECIALIZED ORGANIZATION:

APPROVAL OF THE BASIC AGREEMENT AND IADB STATUTES

THE GENERAL ASSEMBLY,

HAVING SEEN the Report of the Permanent Council on the juridical and institutional link

between the Organization of American States and the Inter-American Defense Board (CP/doc.

…/05); and

CONSIDERING:

That the Inter-American Defense Board ("IADB" or "the Defense Board") was created by

resolution of the Third Meeting of Consultation of Ministers of Foreign Affairs of the American

Republics in 1942, and subsequently strengthened by Resolutions VII and XXXIV of the Ninth

International Conference of American States, the same Conference that gave birth to the OAS and its

1948 Charter;

That the Board and the Organization of American States ("OAS" or "the Organization") share

common objectives under the OAS Charter and respect for the principle of civilian oversight of the

armed forces within the context of representative democracy;

That by resolution AG/RES. 1240 (XXIII-93), the General Assembly "reiterate[d] the need to

define the legal-institutional relationship between the Inter-American Defense Board and the

Organization of American States . . . .", in resolution AG/RES. 1848 (XXXII-O/02) it directed the

Permanent Council "to examine the relationship between the OAS and the IADB and make

recommendations to the General Assembly and the IADB for modifying the IADB's basic structure

and instruments to the extent necessary to clarify and obtain consensus on its status with respect to

the OAS, including the principle of civilian oversight and the democratic formation of its

authorities", and in resolution AG/RES. 1998 (XXXIV-O/04) it instructed the Permanent Council "to

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conclude its analysis and discussions on the juridical and institutional link between the OAS and the

Inter-American Defense Board";

That the “Declaration on Security in the Americas”, adopted by the OAS Member States at

the Special Conference on Security held in Mexico City, October 2003, reiterates, in paragraph 49,

“the need to clarify the juridical and institutional relationship between the Inter-American Defense

Board (“IADB”) and the OAS” and similarly urges the Permanent Council to make specific proposals

to the General Assembly for that purpose;

That the General Assembly is the supreme organ of the OAS authorized under Article 54 of

the Charter to "decide the general action and policy of the Organization, determine the structure and

functions of its organs . . . [and] to establish measures for coordinating the activities of the organs,

agencies, and entities of the Organization among themselves, and such activities with those of the

other institutions of the inter-American system;"

That pursuant to Article 124 of the Charter, the General Assembly determines which

intergovernmental institutions of the inter-American system are to be designated OAS Specialized

Organizations under Article 53(h) and Chapter XVIII of the Charter; and

That Article 128 of the Charter provides that the relations between the Specialized

Organizations and the OAS are set out in agreements between them and the Secretary General,

pursuant to the General Assembly's authorization, and Resolution AG/RES. 87 (II-O/72) sets out

guidelines for those agreements,

RESOLVES:

1. To authorize and instruct the Secretary General to sign on behalf of the Organization

of American States (“OAS”) the Basic Agreement Between the Organization of American States and

the Inter-American Defense Board (“OAS/IADB Agreement”) attached to and incorporated by

reference into this Resolution.

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2. To designate the Inter-American Defense Board (“IADB”) a Specialized

Organization under Article 53(h) and Chapter XVIII of the OAS Charter, subject to the signing of the

OAS/IADB Agreement by the Secretary General and a duly authorized representative of the IADB.

3. To approve the Statutes of the Inter-American Defense Board, attached to and

incorporated by reference into this Resolution, which shall enter into force immediately upon the

signature of the OAS/IADB Agreement by both Parties.

4. To authorize the Permanent Council to take the following measures in the event a

duly authorized representative of the IADB does not sign the OAS/IADB Agreement by June 30,

2005:

a. Instruct the Secretary General not to make further allotments to the IADB for the

remainder of 2004 from the IADB’s appropriation in the 2004 Program-Budget.

b. Redirect all or part of the remainder of the IADB’s 2005 appropriation from the

Program Budget to other OAS priorities, as it may determine.

c. Reassign all or any part of any appropriation to the Board under the 2006 Program

Budget to other OAS priorities, as it may determine.

d. Instruct the IADB, through the Secretary General, to vacate all or part of the

premises known as the “Casa del Soldado” at 2600 16th St., N.W., Washington, D.C.

e. Authorize the Secretary General to take whatever action is in the best interest of the

Organization regarding the disposition of the Casa del Soldado, including lease or

sale thereof.

5. To request the Secretary General to report to the next Regular Session of the General

Assembly on the actions authorized under this Resolution.

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MODEL II: ENTITY

DRAFT RESOLUTIONESTABLISHMENT OF THE INTER-AMERICAN DEFENSE BOARD AS AN ENTITY

OF THE ORGANIZATION OF AMERICAN STATES AND APPROVAL OF ITS STATUTES


HAVING SEEN:

The Report of the Permanent Council on the juridical and institutional link between the

Organization of American States and the Inter-American Defense Board (CP/Doc. /05); and

CONSIDERING:

That the Inter-American Defense Board (“IADB” or “the Defense Board”) was created by




1948 Charter;

That the Board and the Organization of American States (“OAS” or “the Organization”)

share common objectives under the OAS Charter in guaranteeing the peace and security of the

hemisphere and the respect for the principle of civilian oversight of the armed forces within the

context of representative democracy;

That by Resolution AG/RES. 1240 (XXIII-93), the General Assembly “reiterated[d] the need

to define the legal-institutional relationship between the Inter-American Defense Board and the

Organization of American States . . . .,” and in Resolution AG/RES. 1848 (XXXII-0/02) it directed

the Permanent Council “to examine the relationship between the OAS and the IADB and make

recommendations to the General Assembly and the IADB for modifying the IADB’s basic structure



authorities”, and in Resolution AG/RES. 1998 (XXXIV-0/04) it instructed the Permanent Council “to

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Inter-American Defense Board”;


the Special Conference on Security held in Mexico City, October 2003, reiterates in paragraph 49




That the General Assembly is the supreme organ of the Organization authorized under

Article 54 of the Charter to “decide the general action and policy of the Organization, determine the

structure and functions of its organs . . . [and] to establish measures for coordinating the activities of

the organs, agencies, and entities of the organization among themselves, and such activities with

those of the other institutions of the inter-American system;” and

That Article 53 of the OAS Charter includes among the organs of the OAS “entities” that

“may be established in addition to those provided for in the Charter and in accordance with the

provisions thereof”,

RESOLVES:

1. To instruct the Permanent Council, in strict consultation with the IADB, to prepare

and approve ad referendum to the General Assembly a Statute for the IADB replacing its current

Regulations and modifying the IADB’s basic structure and relationship to the OAS to the extent

necessary to institutionalize the principle of civilian oversight and the democratic formation of its

authorities.

2. To designate the Inter-American Defense Board an “entity” of the Organization

under Article 53 of the OAS Charter, subject to the subsequent approval of the IADB Statute by the

Permanent Council and the Board ad referendum to the General Assembly, and to establish that the

IADB’s status as an OAS entity and its Statute shall enter into force once its Statute is approved by

the Permanent Council and the Board.

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3. To request that the Permanent Council present for the consideration of the General

Assembly at its next Regular Session the IADB Statute so approved by the Council and the IADB.

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MODEL III: ENTITY

DRAFT RESOLUTION

ESTABLISHMENT OF THE INTER-AMERICAN DEFENSE BOARD AS AN ENTITY OF THE ORGANIZATION OF AMERICAN STATES AND APPROVAL OF ITS STATUTES


HAVING SEEN:

The Report of the Permanent Council on the juridical and institutional link between the

Organization of American States and the Inter-American Defense Board (CP/Doc. /05); and

CONSIDERING:

That the Inter-American Defense Board (“IADB” or “the Defense Board”) was created by




1948 Charter;

That the Board and the Organization of American States (“OAS” or “the Organization”)

share common objectives under the OAS Charter in guaranteeing the peace and security of the

hemisphere and the respect for the principle of civilian oversight of the armed forces within the

context of representative democracy;

That by Resolution AG/RES. 1240 (XXIII-93), the General Assembly “reiterated[d] the need

to define the legal-institutional relationship between the Inter-American Defense Board and the

Organization of American States . . . .,” and in Resolution AG/RES. 1848 (XXXII-0/02) it directed

the Permanent Council “to examine the relationship between the OAS and the IADB and make

recommendations to the General Assembly and the IADB for modifying the IADB’s basic structure



- 59 -

authorities”, and in Resolution AG/RES. 1998 (XXXIV-0/04) it instructed the Permanent Council “to


Inter-American Defense Board”;


the Special Conference on Security held in Mexico City, October 2003, reiterates in paragraph 49




That the General Assembly is the supreme organ of the Organization authorized under

Article 54 of the Charter to “decide the general action and policy of the Organization, determine the

structure and functions of its organs . . . [and] to establish measures for coordinating the activities of

the organs, agencies, and entities of the organization among themselves, and such activities with

those of the other institutions of the inter-American system;” and

That Article 53 of the OAS Charter includes among the organs of the OAS “entities” that

“may be established in addition to those provided for in the Charter and in accordance with the

provisions thereof”,

RESOLVES:

1. To designate the Inter-American Defense Board an “entity” of the Organization

under Article 53 of the OAS Charter.

2. To approve the Statutes of the Inter-American Defense Board, attached to this

Resolution.

3. To request that the Permanent Council Committee on Hemispheric Security monitor

the operation of the IADB under its new Statutes, and to request that the Permanent Council report to

the next Regular Session of the General Assembly on the effectiveness of this solution as a

jurisdictional and institutional link between the IADB and the Organization.

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