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Published online by Cambridge University Press: 21 May 2009
At a Conference held in Mexico City from 17th to 28th September 1970, the statutes of a new universal intergovernmental organisation, The World Tourism Organisation, were drawn up, to become effective and the organisation bought into being 120 days after 51 competent States have signified their acceptance of them. These statutes were drawn up in circumstances which, from a legal point of view, can only be regarded as decidedly unusual. Basically what happened was that the International Union of Official Travel Organisations, IUOTO, an international non-governmental organisation, was attempting to secure a means whereby it could “transform” itself from its private law status into a fully-fledged international intergovernmental organisation, governed by public international law, and this without any break in the continuity of legal personality between the two situations. The story of the metamorphosis of IUOTO makes interestingreading.
1. Article 4 of the Statute of IUOTO.
2. Resolution XX/15 adopted by the XXth General Assembly of IUOTO, held at Tokyo 1967, hereafter referred to as the “Tokyo resolution”.
3. Ibid.
4. Ibid.
5. Resolution adopted by the 83rd meeting of the Executive Committee of IUOTO, hereafter referred to as the “Beirut resolution”.
6. Ibid.
7. Note of the President of IUOTO: IUOTO at the Crossroads; Official Document of IUOTO, Doc. SG/332, p. 2.
8. Resolution adopted by the Sofia Conference (35: 14: 7) hereafter referred to as the “Sofia Resolution”.
9. “Review of the Programmes and Activities of the United Nations System of Organisations for the Development of Tourism: The Constitutional, Organisational and Financial Implications of the Establishment of an Intergovernmental Tourism Organisation”: Report by the Secretary-General: Doc. E/4750, at paras. 2–4.
10. Resolution XXI/5 adopted by the XXI-st IUOTO General Assembly in Dublin, November 1969; hereafter referred to as the “Dublin resolution”.
11. IUOTO at the Cross Roads, p. 2.
12. UN Doc. E/4750; hereafter referred to as “the Report”.
13. Ibid., p. 7.
14. UN Doc. E/L.1278/Rev. 1; see the Report, at p. 7.
15. The Report, p. 13.Google Scholar
16. Ibid.
17. Ibid at p. 15.
18. Ibid at p. 16.
19. McNair, , The Law of Treaties, pp. 21–22Google Scholar; cf The Scotia 81 US (14 Wall) 170Google Scholar; 20L Ed. 822.
20. At p. 40.
21. G.A. (XXIV), Plen., Res. 2529 (XXIV).
22. IUOTO at the Crossroads, p. 5; emphasis added.
23. Ibid, p. 6.
24. Ibid, p. 6.
25. Letter from M. R.C. Lonati to the Chief Executive, The British Tourist Authority, dated 14 08, 1970.Google Scholar
26. IUOTO Doc. AGE/Plen. 3, at p. 3.
27. IUOTO Doc. AGE/Plen 3/Suppl. 1 at p. 38.
28. IUOTO Doc. AGE/Plen 3/Suppl. 1 p. 50; The Canadian Commentary had also taken exception to this notion of automatic membership. In this respect Canada had stated, (AGE/Plen. 3): “Canada has reservations concerning the proposed transition procedures. The first reservation relates to paragraph 3 of the draft resolution prepared by the Working Group of the Special Committee considering the Draft Revised Statutes (Document CST/(I)70/WK.P.11). This paragraph has the effect of placing an onus on those States which do not wish to be immediately bound by the statutes to so inform the Secretary-General. Failure to do so will mean a State's automatic adhesion to the new organisation. In accordance with normal treaty procedures Canada would consider it preferable for the onus to be placed instead on those States which do wish to be immediately bound by the statutes to so declare. Constituent instruments bringing into being an intergovernmental organisation subject to international law normally provide an interval between signature and ratification to enable contracting states where necessary to examine carefully the provisions of the instrument and take what constitutional steps are necessary to give the instrument full force and effect in their domestic law. It would seem safe to assume that the majority of States participating in the Extraordinary General Assembly will for internal law reasons wish to defer formal confirmation of their adhesion to the Revised Statutes until they have had an opportunity to examine their contents thoroughly and take what steps are necessary to give them domestic effect. If this assumption be correct, Canada considers it desirable from a legal standpoint that the procedures governing the entry into force of the new organisation should accord as closely as possible to the requirements of the majority of the participating States.
It is suggested therefore that the formal adoption by a State of the Revised Statutes through an affirmative vote on the resolution should constitute only consent ad referendum to be bound by the Statutes. Such adoption would then be subject to confirmation by the State that it has taken the necessary steps to give effect to the Statutes in its internal law and is thereby a Full Member of the new organisation. Those States wishing to be definitively bound by the Statutes by virtue of their affirmative vote on the final text at the Mexico meeting would be required to notify the Secretary-General accordingly by a written communication.”
29. IUOTO Doc. AGE/Plen. 3/Suppl. 1, p. 51.
30. The Canadian Commentary (AGE/Plen. 3) dealt at some length with the related question of how a state could become bound by the statutes of WTO. In the process, Canada, quite independently of the UK, put forward general proposals which echoed the specific suggestions of the above quoted UK draft. On these points Canada stated: “The second reservation relates to paragraph 6 of the resolution [proposed by the Special Committee—see supra p. 285] according to which States which vote affirmatively on the final text of the Revised Statutes as a whole will be deemed to have approved and adopted the Revised Statutes. In other words, a final vote on the text of the Statutes would serve not only to authenticate the text but also constitute a formal expression of consent by a State to be bound by the Revised Statutes. Under normal treaty practice, the vote does not in any sense connote an expression of the State's agreement to be bound by the provisions of the text which can only become binding upon it by a further expression if its consent, i.e. signature, ratification or acceptance.
“Consistent with established treaty practice and for the sake of procedural clarity, it is suggested that a clear distinction be made between the adoption or authentication of the final text of the Revised Statutes on the one hand and the expression of consent to be provisionally or definitively bound by the Revised Statutes on the other. If this procedure were adopted at the Mexico meeting the final vote on the Revised Statutes would constitute only an authentication of the text. States when wishing to formally consent to the Statutes would subscribe to a Resolution or Final Act which would expressly evidence the intention of each subscribing State to be provisionally bound by the Statutes subject to confirmation unless it declares in a written communication to the Secretary-General that it wishes to be definitively bound”.
31. When Sr. Castaneda presented the Committee's Report to the Extraordinary General Assembly, stating it to be unanimous, Tanzania informed the Assembly that the Committee had not been unanimous but that since Tanzania had been outnumbered, it had withdrawn its objections. (See Final Report of the Extraordinary General Assembly: Doc. AGE/RAP GEN.). Some delegations in the Assembly also commented on the Western complexion of the Legal Committee. However, this was a case of “faute de mieux.…”
32. IUOTO DOC. AGE/COM.JUR./1.
