THE CONFERENCE ON THE STATUTE - The Law and Practices of the International Atomic Energy Agency

The final stage68 in the formulation of the Statute was the "Conference on the Statute of the International Atomic Energy Agency", which was convened at United Nations Headquarters in New York on 20 September 1956 and con-cluded its sessions on 26 October with the ceremony at which the new instru-ment was opened for signature. Though the work of the Conference was completed over a decade ago, several unique aspects of its organization and structure still deserve examination, partly as explaining certain features of the Statute and partly for their own sake as relating to an international legal event of major significance.

In view of its somewhat peculiar rules and procedures, it is important to emphasize that the Conference was not sponsored by the United Nations.

This is so even though:

(a) The Conference was convened in part in response to a General Assembly resolution;

(b) The meetings took place at UN Headquarters;

(d) The Conference was serviced entirely by UN Secretariat.

2 . 8 . 1 . Participation

As mentioned in Section 2 . 7 . 3 , the invitations to the Conference were issued by the Government of the United States in the name of the twelve sponsoring Governments, i . e . , those that had participated in the Working Level Meeting.

It was addressed to the 87 States which at that time were members of the United Nations or of any of the specialized agencies. Of these 81 sent repre-sentatives to the Conference.69

The selection formula used in extending the invitations had by 1956 be-come customary in the United Nations and it also appeared in the resolution relating to the Agency passed by the 10* General Assembly. It was of course designed to exclude the Governments of East Germany, North Korea, North Viet-Nam and Outer Mongolia, while including those of the Federal Republic of Germany, South Korea, South Viet-Nam and Switzerland, which, though not members of the United Nations, participated in one or more of the specialized agencies. No direct challenge to this formula was raised at the Conference in connection with participation, though as indicated below attempts were made to introduce the principle of universality into the Agency itself through changes in Articles IV. A and XXI. A of the Statute.

The invitations having been issued by the American Government, that addressed to China was of course sent to the Government of the Republic ( i . e . , Formosa). The participation of this Government was challenged twice during the Conference. At the opening plenary meeting, before the Rules of Procedure had been approved or the President elected, the Soviet repre-sentative raised a point of order; after a number of reprerepre-sentatives had made statements on this issue, the Temporary President (the representative of the United States) closed the debate (evidently by pre-arrangement with the principal delegations concerned) without a vote or other form of decision.70

Later, at the 14^th plenary meeting, when the Secretary-General's report on credentials was being discussed, the issue was raised again by a Soviet request for a separate vote on the Chinese credentials; this motion having been defeated by a vote of 18 : 53 : 9, the question of Conference p a r t i c i -pation was finally disposed of.71

2 . 8 . 2 . Role of the sponsoring Governments

The Conference was officially convened and sponsored by the twelve Govern-ments that had participated in the Working Level Meeting. Though it had not been possible to achieve full agreement on all points in that forum, these Governments had unanimously agreed on a draft text of the Statute and had evidently all decided that no unnecessary obstacles should be placed in the way of the prompt creation of the Agency. Since the agreement that had been reached on the text rested on a number of delicate compromises (e.g., the formula defining the membership of the Board), it was necessary to make certain that these should not be upset in the larger forum; the risk that this might happen was considerable in view of the fact that the sponsoring Govern-ments, though politically by no means homogeneous, represented from the point of view of the future Agency mostly and most of the potential suppliers

and these had formulated a Statute which plainly largely reflected their interests.

To preserve these important but delicate compromises, the sponsoring Governments agreed, in a spirit of cohesion remarkable in the light of their general political disagreements, to go to special lengths to prevent the adoption of any disturbing amendments. The m e a s u r e s they adopted for this purpose were manifold. In large part they rested on several procedural devices, commented on below, which were designed to inhibit the submission of amendments and to make their adoption difficult. The deliberately r e -stricted schedule of the Conference contributed to this goal. When these devices were not sufficient and a particular point seemed threatened by an adequate majority, appeals (sometimes almost threats) were voiced publicly and evidently also privately, that the formula proposed by the sponsoring Governments must at all costs be maintained — appeals that were uniformly effective whenever supported by all these Governments. 72 Finally the sponsoring Governments fully controlled the machinery of the Conference.

These Governments thus played several interrelated roles, before, during and after the Conference:

(a) As participants in the Working Level Meeting they had prepared the draft Statute which the Conference was considering.

(b) As the sponsoring Governments they had convened the Conference and prepared its Rules of Procedure; under the latter the same Govern-ments constituted the Co-ordination Committee — which acted as a com-bined general committee and special drafting committee; the two elected officers of the Conference were also chosen from among the representa-tives of this group.

(c) Finally these Governments automatically constituted two-thirds of the 18-nation Preparatory Commission established by Annex I to the Statute.

It should be noted that the role of these Governments in sponsoring the Conference did not extend to bearing its expenses. These were instead ap-portioned equally among all the participating Governments — a formula which caused some concern about the method of financing the Agency itself.^{7 3}

2 . 8 . 3 . Organization and structure

The Conference was conducted in accordance with Rules of Procedure pro-posed by the Working Level Meeting and approved without change at the first meeting of the Conference.⁷⁴ They were supplemented by a "Report of the Co-ordination Committee on the Organization of the Conference and Schedule", and the arrangements proposed therein were also approved by the Conference itself.7 5 Finally a number of important procedural rulings were made by the President in his function as Chairman of the Main Committee, all in the interest of accelerating the work.

In accordance with these Rules, arrangements and rulings, the Conference was organized with commendable simplicity. It had only three "organs":

the Plenary Meeting, a plenary Main Committee and the 12-member Co-ordination Committee. As a matter of fact, since the Plenary never met simultaneously with the Main Committee, since their officers and procedures (e.g., voting requirements) were the same, and since the flow of business was so arranged that no point considered by the Main Committee would be reconsidered in the Plenary, the distinction between these two organs was somewhat artificial.76

Only two officers were elected by the Conference. The President was the representative of Brazil, and he also served as Chairman of the Main Committee and of the Co-ordination Committee; the Vice-President was the representative of Czechoslovakia, and he also served as Vice-Chairman of these two Committees. The Secretary-General of the United Nations served as Secretary-General of the Conference, and in that capacity also prepared the report on credentials — thus obviating the need fora credentials committee. 77

2.8.4. Conduct of business

The principal business of the Conference was the consideration of the draft Statute proposed by the Working Level Meeting, and the adoption of a final text. This proceeded in several distinct stages:

(a) Initially 13 meetings of the Plenary were devoted to a general debate — in effect a series of statements relating to the text of the Statute as a whole or to particular features of the draft presented by the sponsoring Governments.78

(b) Formal proposals for amendments could only be submitted up to the end of the general debate — and actually almost all appear to have been submitted within a day or so of that date.79 Thereafter only compromise revisions of previous amendments could be submitted, and even these were not published as regular conference documents, but were either merely read at a meeting of the Main Committee or were issued as informal Conference Room Papers. Some minor oral amendments were proposed from time to time during the course of the article-by-article debate, but insofar as any of these were not accepted unanimously or incorporated into a previously submitted formal amendment they were for the most part merely referred to the Co-ordination Committee.

(c) The Main Committee started with an article-by-article first reading of the Statute, at which the formal amendments were explained by their sponsors and debated but were generally not acted on, except to the extent that some were accepted unanimously while many others were withdrawn. At this stage, articles to which no amendments had been proposed were considered unanimously accepted and were submitted directly to the Co-ordination Committee.

(d) Soon after the first reading of a group of articles the second reading took place — even before the first reading of the entire text had been completed. At this reading generally no further debate was allowed, except on versions of amendments that had been revised since the first reading; explanations of votes were permitted only after all

amend-merits had been disposed of and the article adopted. Amendments had to be approved by a two-thirds vote — while the adoption of articles (whether amended or not) only required a majority vote. 8 0 These un-usual procedural Rules were of course successfully designed to make it difficult to change the Working Level Meeting's text; formally they were justified by recalling that the views of all interested Governments had already been considered by the Working Level Meeting, by pointing to the importance and vulnerability of the compromises reached, and by stating bluntly that it was essential that the Statute be acceptable to the potential suppliers. Several amendments were indeed defeated merely because of the two-thirds rule (without even taking account of those that were withdrawn in anticipation of such a defeat); practically all amendments passed received almost unanimous approval. Each Article was, in the event, adopted by a practically unanimous vote — i . e . , there appeared to have been no danger that one would be com-pletely deleted.

(e) After each article was adopted by the Main Committee it was referred directly to the Co-ordination Committee,81 together with any additional proposals (nominally drafting changes) that the Main Committee had either declined to act on because not submitted in due time or form, or which had been submitted to it merely with a view to such referral to the Co-ordination Committee;82 as to none of these proposals did the Main Committee add any recommendation except as might be deduced from the course of the debate.

(f) The Co-ordination Committee considered the articles and the additional proposals under a rule which charged it with reviewing "the draft articles and the draft Statute as a whole with a view to eliminating in-consistencies in terminology".83 Unfortunately no records were kept of those of its meetings that were devoted to this review. The Com-mittee's final report consisted of two parts:

(i) A revised text of the entire Statute, incorporating the changes that the Committee had made either on the basis of the proposals referred to it by the Main Committee or on its own initiative; these changes were not supported by any commentary.84

(ii) A short commentary was submitted on most of the proposals that the Committee had rejected.85 A frequent ground given was that the change proposed was in effect substantive and thus exceeded the terms of reference of the Co-ordination Committee — even though the Main Committee had declined to take action on some of these proposals and had decided to refer them to the Co-ordination Committee precisely on the ground that no issue of substance was involved. In view of the agreed rules and procedures, and particularly because of time limi-tations, no re-referral to the Main Committee was possible.

(g) The text of the Statute recommended by the Co-ordination Committee was adopted at the 15th Plenary Meeting, without debate, by unanimous standing vote.86 At the 16th Plenary on 26 October, the Statute was opened for signature.87

2.8.5. Schedule

No account of the Conference on the Statute would be complete if it did not convey an impression of the tremendous time pressure under which this complex instrument was considered. The principal reason for this pressure was the relatively late opening date of the Conference, which was set by the sponsoring Governments perhaps in part with the deliberate intention of discouraging excessive alteration of the text, since the meetings had to be planned to terminate before the immovable opening date of the General Assembly in whose hall the Conference was being held. In the event this squeeze-play, if such it was, almost backfired, for far more amendments were submitted than had been expected.88

Dealing with the relative flood of amendments rapidly required heroic measures, and they were taken. During the second reading in the Main Committee, amendments were voted on which had just been circulated or had only once been read aloud, often with no explanation, immediately be-fore the vote. Even more severe was the pressure on the Co-ordination Committee, which had to consider practically the entire text of the Statute and some two-score drafting proposals over a single weekend; it is charitable to suggest that this pressure, rather than mere pride of authorship, ac-counts for the rather cavalier rejection by the Committee of a number of very sensible proposals — some of which it should have accepted, while others should have been referred back to the Main Committee or reported separately to the Conference as involving matters of substance that one of the plenary organs must decide.89

It is only by comparing the length of the Conference on the Statute with that of other diplomatic meetings having similar participation but lesser importance, that we can appreciate the work that was done in New York.

Though the Statute is by no means a perfect instrument, as its authors well knew or felt, it was an achievement to have reached agreement (unanimous at that) on any meaningful text at all. The main credit must go to the un-usual co-operation and sometimes strong-arm tactics of the sponsoring Governments; but praise must also be assigned to the other invitees which, in exaggerated and perhaps naive expectation of the benefits that would rapidly flow from the new organization, showed praiseworthy forbearance in the face of the sometimes frustrating insistence that nothing contained in the proposed text should be changed.

2.8.6. Principal issues

Almost one hundred amendments were formally submitted to the Conference.90

Of these some 30 were withdrawn, 26 were rejected by votes in the Main Committee (6 for lack of a two-thirds majority), while some 35 were adopted unanimously or by a vote. The substance of the significant proposals and their disposition will in most cases be dealt with in the appropriate intro-ductory portions of the Chapters that follow. In general, the principal issues considered by the Conference were similar to those raised a year earlier in the debates at the 10th General Assembly or later submitted in writing in relation to the Negotiating Group's draft. Though it was generally

ac-knowledged that the Working Level Meeting had greatly improved many of the points on which the earlier draft had been criticized, further changes in the same direction were demanded by many Governments. In particular the following proposals were made:

(a) To shift the balance of power still further from the Board of Governors to the General Conference, by diminishing the functions of the former and enhancing those of the latter.

(b) To alter the composition of the Board — in particular by decreasing the representation of the sponsoring Governments — but all such pro-posals were defeated by the closed-front of these Governments.

(d) To increase the functions of the Agency and to specify some of them more clearly, in particular those designed to bring extra benefits to the less-developed States.

(e) To put pressures on the more developed States to contribute nuclear materials and other assistance to the Agency — these efforts too were solidly and therefore successfully resisted by the sponsoring Governments.

(f) To decrease the severity of the safeguards controls of the Agency.

(g) To clarify or modify the financial provisions, to make certain that the burden of the cost of establishing the facilities of the Agency would not have to be borne entirely by the less-developed States making use of them.

(h) To provide for universality in the initial membership.

(i) To expand the provisions for the settlement of disputes and to clarify them, particularly with respect to the obligation to submit questions to the International Court of Justice.

(j) To provide for closer or different ties with the United Nations, the specialized agencies and regional organizations; it is interesting to note that on these questions representatives of the Secretariats of the United Nations and of several of the specialized agencies (who were con-cerned lest the new Agency intrude on their competence) made written submissions and also intervened in the debates in both the Plenary Meeting and in the Main Committee.91

(k) To ease the process of amending the Statute, in particular by elimi-nating the Board's veto and by providing for the semi-automatic initi-ation of a general review after four years of operiniti-ation; this was felt to be particularly important in view of the admitted haste of the Conference, the many imperfect compromises that had been made, and the likeli-hood of rapid change in the nuclear energy field.

Due in large part to the various pressures described above and to the fundamental soundness of the basic draft, the Conference made no structural or other radical changes in the text prepared by the Working Level Meeting.

The significant changes made were restricted to certain increases in the powers of the General Conference, some minor decreases in those of the Board, a simplification of the amendment procedure and the introduction of a provision for a general review of the Statute, some restrictions on the

Dans le document The Law and Practices of the International Atomic Energy Agency | IAEA (Page 44-57)