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An International Legal Extravaganza in the Indian Ocean: Placing the Indian Ocean Tuna Commission outside the Framework of FAO

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The Indian Ocean Tuna Commission (established by treaty under Article XIV of the FAO Constitution) has tried to amend its own Agreement to place itself outside the framework of FAO in order to deal more effectively with "fishing entities". However, its attempts to do so have been thwarted in part by the refusal of the Director-General of FAO to circulate proposed amendments. This is evaluated and found to be contrary to Article 76.2 of the Vienna Convention on the Law of Treaties, which refers to the international character of a depositary and the need for impartiality. In addition, the Secretariat of FAO has asserted that it can be achieved only by a cumbersome treaty process involving termination of the present treaty and Commission and establishing a new treaty and new Commission. The paper evaluates the arguments for this position in the light of international treaty law, including the practice in other treaty bodies. It concludes that the arguments in support of such a convoluted approach are fundamentally flawed. Finally, the paper considers briefly whether the Commission has international legal personality, and concludes that it does.

Affiliations: 1: Professorial Fellow, Australian National Centre for Ocean Resources and Security, University of Wollongong

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