ONGOING REVIEW OF UN’S PAY, BENEFITS SYSTEM
TAKEN UP IN BUDGET COMMITTEE
NEW YORK, 3 November (UN Headquarters) -- Addressing the Fifth Committee (Administrative and Budgetary) as it began its consideration of the United Nations common system this morning, the President of the Federation of International Civil Servants’ Associations (FICSA), Richard Kerby, highlighted concerns about the ongoing review of the pay and benefits system being conducted by the International Civil Service Commission.
Following an introduction of the Commission’s annual report, which presented that body’s latest recommendations on the Organization’s pay and benefits system, contractual arrangements and conditions of service of international personnel, Mr. Kerby said that the Federation was against such initiatives as broad banding of salaries and pay-for-performance, for there was little evidence that they would improved pay system effectiveness.
Among the Federation’s many objections, he added, were the difficulty of maintaining system-wide consistency and equity in pay and lack of protection against arbitrary job assignments. Also, pay progression was slow, staff competed against each other for raises, and the proposed new managerial discretion increased the risk of cronyism and favouritism.
Regarding contractual arrangements, he said that the Federation had witnessed a rise in the misuse and over-reliance on short-term contracts, particularly in the field. While many organizations wanted to retain flexibility in deciding which kinds of contracts to offer, such flexibility should not be at the cost of creating vast inconsistencies and inequities among staff, thus threatening the coherence of a common system.
The Federation supported the decision of the Commission to increase the level of hazardous pay granted to locally recruited staff to 30 per cent of the midpoint of the local salary scale, he continued. However, it had been informed that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) area staff would receive a one-time lump payment of only $100 for working in hazardous conditions. The long-standing issue of providing hazard pay to UNRWA area staff needed to be addressed.
Both Mr. Kerby and the Chairman of the Commission, Mohsen Bel Hadj Amor, who introduced that body’s report, recalled that last year, the Assembly had not approved the Commission’s recommendations to bring the net remuneration margin to its desirable level of 115. The adoption of a scale, which was lower than the one recommended by the Commission, had led to the margin currently being at 111.9.
[Under the current methodology, the salary scale is set by reference to that of the comparator civil service in Washington, D.C. In accordance with the accepted practice, the desirable midpoint of United Nations officials (P-4, step VI, at the dependency rate) has been set at 115 per cent of corresponding salaries of their counterparts in the United States federal civil service.]
Also this morning, the Committee had a brief discussion on the financial situation of the International Research and Training Institute for the Advancement of Women (INSTRAW) and concluded its consideration of a series of reports introduced last week, including those on the information technology strategy and management and review of the United Nations budgeting process.
In a debate that threatened to overshadow the agenda items on the Committee’s programme work, many delegations also addressed the legality of the Secretariat’s administrative instructions on a total ban of smoking at the United Nations premises. Several speakers, including representatives of the Russian Federation and Mexico, questioned the procedures followed, insisting that a 2000 Assembly resolution on the matter had precedence over the subsequent New York State and City Smoke-Free Air Act of 2002. Without arguing about the hazards of smoking, particularly from second-hand smoke, numerous speakers said that it was necessary to follow the United Nations procedures. Representatives of the United States, Canada and Australia, however, supported the Secretary-General’s actions.
Responses to the questions posed by Member States were provided by Bruce Rashkow, Director of the General Legal Division, who described the provisions of the Headquarters agreement, noting differing interpretations of that instrument and outlining possible future actions of the Assembly, which included promulgation of a Headquarters regulation on the matter.
Also participating in the work of the Committee were the representatives of Japan, Saudi Arabia, Syria, Venezuela, Costa Rica, Dominican Republic, India, New Zealand, Uruguay, China and Nigeria. Responding to questions and introducing reports were Assistant Secretary-General for the Office of Central Support Services, Andrew Toh, Director of the Office of Programme Planning and Budget Division, Warren Sach, Chairman of the Advisory Committee on Administrative and Budgetary Questions (ACABQ), Conrad S. M. Mselle, Director of the Division for Organizational Development of the Office of Human Resources Management, Jan Beagle, and Office of Internal Oversight Services representative, Uwe Hain.
The Committee will continue its work at 9.30 a.m. Tuesday, 4 November.
The Fifth Committee (Administrative and Budgetary) this morning was expected to continue its consideration of a series of reports on various aspects of the 2004-2005 budget, as well as take up the financial situation of the International Research and Training Institute for the Advancement of Women (INSTRAW) and various documents related to the United Nations common system. For summaries of reports, which were introduced on Friday, see Press Release GA/AB 3586 of 31 October.
United Nations Common System
Before the Committee was the report of the International Civil Service Commission for 2003 (document A/58/30) which contains its latest recommendations on the Organization’s pay and benefits system, contractual arrangements and conditions of service of international personnel.
According to the document, a few years ago, the General Assembly called upon the Commission to play a lead role in the development of new approaches in the field of human resources management, as part of the overall reform in the organizations of the common system. As part of its response, the Commission developed an integrated framework for human resources management, which was endorsed by the Assembly. In 2000, the Commission decided to review, on a priority basis, the pay and benefits system, which it saw as the centrepiece of the framework.
During this year’s session, the Commission decided to proceed with a review of the current mobility and hardship allowance and the presentation of alternative approaches to compensation for mobility and hardship. It also continued to keep under review the operation of the post-adjustment system and considered the report of its Advisory Committee on Post Adjustment Questions on the work of its twenty-fifth session.
Having considered the base/floor staff salary scale, the Commission recommended reverting to the procedure used when the scale was first established in 1989 and to use the nationwide General Schedule (excluding locality pay) of the United States federal civil service as a reference point for United Nations salaries. This recommendation would result in the base/floor scale being maintained at its current level for the time being.
The report states that, generally, the headquarters methodology had functioned adequately and allowed for the setting of fair and competitive pay for locally recruited staff. It confirms the Flemming principle of the General Service salary service methodology. [Under the current methodology, the scale is set by reference to the salary scale of the comparator civil service in Washington, D.C. Periodic adjustments are made to the scale on the basis of a comparison of net base salaries of United Nations officials at the midpoint of the scale (O-4, step VI, at the dependency rate) with the corresponding salaries of their counterparts in the United States federal civil service.]
Also according to the document, system-wide implications of the Commission’s decision to adjust the level of hazard pay for locally recruited staff were estimated at some $2.7 million per annum.
Another decision of the Commission involved approval, with effect from 1 January 2004, of the revised methodology for conducting surveys of the best prevailing conditions of employment at non-headquarters duty stations as presented by the Secretariat, subject to a number of modifications proposed by staff representatives which aim at further clarifying the survey process.
The Secretary-General’s statement on the administrative and financial implications of the recommendations of the International Civil Service Commission (document A/58/378) relates to annual financial implications of the Commission’s decision to increase the level of hazard pay to locally recruited staff from 20 to 30 per cent of the midpoint of local bases salary scales, effective 1 January 2004. According to the document, such implications for the common system as a whole have been estimated at $2.7 million, and for the regular budget of the United Nations at $887,000. For 2004-2005, related costs arising from the modification of the benefit would amount to about $1.77 million. These requirements will be accommodated within the common staff costs provision in the proposed programme budget currently before the Assembly.
The Advisory Committee, in a related report (document A/58/7/Add.2), recommends approval of the Secretary-General’s recommendation to accommodate the additional requirement of $1.774 million from within the common staff costs provision in the proposed programme budget for the biennium 2004-2005.
Introduction of Report
The Chairman of the International Civil Service Commission (ICSC), MOHSEN BEL HADJ AMOR, introduced that body’s annual report. While expressing a high degree of optimism over the current state of the work of the Commission on the review of the pay and benefits system, he said that he did not underestimate the difficulties in executing that task. The very complexities of the international civil service implied a variety of positions on practically every issue under review. The discussions in the Commission had, therefore, always been vigorous, but at the same time constructive.
Having identified the revision of the current system of job evaluation as an issue of high priority, the Commission had set out to revise and simplify the current system of classifying positions, he said. It focused on those factors and elements, which were key in determining the level of the post. Under the new system, managers would be better able to determine how assigned work was to be accomplished and how best to manage the performance of staff selected to carry out that work.
He was happy to report that, after careful testing and a number of validation exercises, the new Master Standard for the classification of posts in the Professional and higher categories was now ready for promulgation. The new Standard would represent the first building block of the new human resources initiatives being examined by the Commission. It could be considered a key underpinning of the Commission’s future work on performance management, broad banded salary structures and other human resources initiatives.
In that regard, he was also pleased to announce that the Commission had requested its secretariat to pursue further research on the proposal to reform the job evaluation system for the General Service and related categories and to provide the Commission with a report. The Commission had also moved forward in the establishment of a broad-banding system and related human resources initiatives, such as pay for performance, competency development and client feedback mechanisms -- yet another area of the pay and benefits review.
Regarding the Commission’s earlier decision to conduct a pilot study of the broad banding/pay for performance concepts at volunteer common system organizations commencing, at the earliest, in January 2004, he said that a careful and measured approach was needed to ensure success. As it was important to commence the study upon completion of preparatory work and when volunteer organizations were ready, some of those organizations would commence the study in the latter half of 2004, and others could participate at a later date.
Extra-budgetary resources would be required for a highly qualified project manager who would oversee the pilot study. Since the pilot study initiatives were eventually intended for broader application within the common system, the Commission also believed it was necessary to establish a task force representing organizations and staff, which would be led by the Commission secretariat.
Regarding another of its recent initiatives -- creation of a Senior Management Service -- he said that the Commission had decided to address that issue on the basis of the guidelines provided in its 2002 report. It would also monitor the work on the establishment of such a service currently being conducted by the United Nations System Chief Executives Board for Coordination. However, the Commission did not feel that consideration of the Senior Management Service would need to be undertaken in the context of the pay and benefits review.
As requested by the Assembly in its resolution 57/285, this year the Commission had started to examine the linkage between the base/floor salary scale and the mobility and hardship allowance, but was unable to complete that task because of time constraints, he continued. Therefore, the Commission had requested its secretariat to proceed with the review and to present alternative approaches to compensation for mobility and hardship in the context of the ongoing review of pay and benefits, and to report to the Commission in the summer of 2004. As the base/floor salary scale would be maintained at its current level for the time being, the levels of mobility and hardship payments would also remain unchanged.
He went on to say that two other core elements of human resources management considered this year were mobility and contractual arrangements. Based on information received from organizations, the Commission had identified four key areas where programmes should be developed to enhance mobility, including strategies to change organizational culture with regard to mobility, a clear definition of various types of mobility, and terms of contracts and spouse employment.
Upon continued consideration of contractual arrangements, the Commission had noted the existence of a large number of contracts in the common system. It felt that it did not have enough information at the current stage to make a meaningful assessment of the situation in the common system and to arrive at a decision that would support harmonization of practice in the organization. Therefore, it had requested its secretariat to prepare a model contract for continuing fixed-term and temporary appointments, with details on conditions of employment for each category.
He then recalled that last year the Commission’s recommendations to bring the net remuneration margin to its desirable level of 115 were not approved by the General Assembly. The adoption of a scale that was lower than the one recommended by the Commission had led to the margin currently being at 111.9.
As requested by the Assembly last year, the Commission had reconsidered its decision to increase the level of hazard pay granted to locally recruited staff to 30 per cent of the midpoint of the local salary scale. However, as seen from the report, after careful consideration, it was decided to uphold the decision with effect from 1 January 2004. A majority of the Commission felt that locally recruited staff were an extremely vulnerable group and had to put their health, well-being and even lives on the line in the daily conduct of their duties. Those members felt that, although nothing could compensate for the loss of life, the recommended increase would signal recognition of the dedication and commitment of local staff.
Also addressed in the report was General Service salary survey methodology, he said. The conclusion of the Commission’s latest review was that, while methodologies for both headquarters and non-headquarters duty stations were basically sound, they required fine-tuning on a number of points. Those changes were detailed in the report. The revised methodologies would come into effect as of 1 January 2004. And finally, the Commission had continued this year its review of the mission subsistence allowance/special operations approach. He hoped next year to present the Committee with a report that would set out arrangements applicable to all organizations.
In conclusion, he said that the Commission had had a busy and productive year. It continued to make efforts to uphold, strengthen and streamline the common system and “to help shape a workforce equal to today’s challenges”.
RICHARD KERBY, President of the Federation of International Civil Servants’ Associations (FICSA), said that the recent report of the Independent Panel on the Safety and Security of United Nations Personnel in Iraq had aggravated an already deep wound. The Federation was distressed to learn from the report about serious breaches and shortcomings in the United Nations security management system. The responsibility of the host government for the security of United Nations staff did not absolve the United Nations from its responsibility to care for its employees. The Federation, therefore, urged that an in-depth, independent investigation be carried out to identify the people responsible for the deficiencies and lack of compliance in the security management system.
Moving on to the issues addressed in the International Civil Service Commission report, he highlighted concerns about the reform of the pay and benefits system. The Federation was against broad banding and pay-for-performace, he said. Among the Federation’s many objections were the fact that: it would be difficult to maintain system-wide consistency and equity in pay; there was no protection against arbitrary job assignments; pay progression was slow; team work eroded; staff competed against each other for raises; and the proposed new managerial discretion increased the risk of cronyism and favouritism. Additionally, there was little evidence that broad banding and pay-for-performance improved pay system effectiveness. Nevertheless, the Federation would join the Task Force responsible for preparing for and monitoring the implementation of the pilot studies, he said.
Regarding contractual arrangements, the Federation had witnessed a rise in the misuse and over reliance on short-term contracts, particularly in the field. Many organizations had indicated that they wished to retain flexibility in deciding which kinds of contracts to offer. However, that flexibility should not be at the cost of creating vast inconsistencies and inequities among staff, thus threatening the coherence of a common system. The increased use of non-core funding should not prevent managers from granting fixed-term contracts, he said, and agencies should abide by the existing regulations and strive to improve stability and security of employment all staff.
The Federation supported the decision of the Commission to increase the level of hazard pay granted to locally recruited staff to 30 per cent of the midpoint of the local salary scale, he continued. However, the Federation had been informed that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) area staff would receive a one-time lump payment of only $100 for working in hazardous conditions, and reiterated its plea to the Commission to urge the UNRWA Commissioner-General and the Secretary-General to work closely with Member States to address the long standing issue of providing hazard pay to UNRWA area staff.
Last year, the Federation had looked forward to seeing a real increase in professional salaries and when the margin had dropped below the lower end of the acceptable range, the Federation had called for restoring it to the midpoint of 115, in accordance with commonly accepted practice. Unfortunately the Commission recommended, and the General Assembly approved, action to raise the margin arbitrarily to 112 and to grant the salary increase on a differentiated basis, thus denying increases to Professional staff at grades P-1 through P-3. Moreover, an additional 1 per cent raise granted retroactively by the comparator in March 2003 had not been granted to United Nations staff.
This year the Commission had reported the margin at 111.9. The Commission had stated that if it were to follow the procedure it had used since 1995 for adjusting the base/floor salary scale, an 8.4 per cent adjustment would be necessary to keep the base/floor scale in line with the comparator. Instead, the Commission had made yet another arbitrary decision. It agreed to use the nationwide General Schedule, excluding locality pay for Washington D.C., as the reference point and to recommend maintaining the base/floor salary scale at its current level. Thus, for the second year in a row, professional staff had not received the correct increase. The Federation, therefore, called on Member States to adjust the base/floor salary scale by 8.4 per cent.
The Federation supported the link between the mobility and hardship allowance and the base/floor salary scale. The simplicity and transparency of the current system helped to bolster confidence in the system and facilitate its management. Any diminution of this allowance would contradict current efforts to enhance mobility policies in the common system, he stressed. With respect to General Service salaries, the Federation had successfully convinced the Commission that the reform of the methodology as initially proposed would have had a very negative impact, particularly in the field duty stations where staff were already losing out as a result of inflation and the devaluation of local currency. The Federation still insisted that the new methodology should be applied flexibly, taking into account local circumstances.
As the Committee continued its consideration of the reports introduced last week, SHINICHI YAMANAKA (Japan) agreed with others that investments in information and communication technologies (ICT) were key to the modernization of the United Nations and achievement of productivity gains within the Organization. However, it was also important that efficiency and savings as a return on investment should be clearly identified. As for governance issues, he noted that the Project Review Committee of the Information and Communications Technology Board was currently being established. It seemed to be different from the explanation in document A/57/620. He wondered if the Project Review Committee was a new body, in addition to the existing bodies in the field of ICT.
Regarding rationale for investment, he said that information on the return on investments provided no clear image of efficiency and savings, he continued. He intended to make further comments in that regard during the discussions on the proposed 2004-2005 budget. As for field connectivity, he appreciated the information on further developments in that respect. However, it was still difficult to understand the overall picture. He asked the Secretariat to provide the delegations with a revised list of major actions and time frames.
Regarding the conclusions and recommendations of document A/58/377, he said that the Assembly had increased the overall level of the budget for the current biennium by $89.5 million, or 3.5 per cent in December 2001, and subsequently by $355 million, or 14 per cent in December 2002, compared with the level of the revised budget for the previous biennium. Following the Assembly decision to reduce by $10 million the proposed requirements, adjustments of outputs or activities had been made by the Secretariat. Therefore, his delegation believed that the Secretariat had set priorities on information technology-related activities and that it had implemented only priority activities. He regretted that the restoration of information technology resources had been requested without specific information and justification.
On the proposed review of the budgeting process, AHMED FARID (Saudi Arabia) encouraged the Secretariat to study the possibility of reporting on programme performance and implications at several intervals during the biennium to provide guidance for future plans. Such reporting would also allow the Assembly to adjust resource allocation decisions. As for the Medium-Term Plan, he agreed that it should be an instrument of policy, not a listing of activities. The current plan had difficulties in identifying priorities and provided no linkage between projected outcomes and resources. A more detailed report should be submitted to the General Assembly, reflecting the repercussions of maintaining a four-year Medium-Term Plan or shortening it to two years, so that a sound decision could be made in that regard.
ANDREW TOH, Assistant Secretary-General, Office of Central Support Services, responding to questions raised by the representative of Japan, said that the Project Review Committee was a part of the ICT Board, which was needed because the Board was too large to go through each and every initiative. At each step of the way, vetting was carried out at the departmental level before it went to the Review Committee, he said.
WARREN SACH, Director, Programme Planning and Budget Division, introduced the report of the United Nations International Research and Training Institute for the Advancement of Women contained in document A/58/426 (See Press Release GA/AB/3586 for further details).
CONRAD S.M MSELLE introduced the related report of the Advisory Committee on Administrative and Budgetary Questions (ACABQ) contained in document A/58/547 in which the Committee recommends that the General Assembly take note of the report of the Secretary-General. The Committee understood that the matter of INSTRAW was currently before the Third Committee, he said. Should developments in that Committee result in the submission by the Secretary-General of a statement of programme budget implications, the Advisory Committee would revert to the matter at that time.
Responding to queries from the delegates of Mexico and Venezuela regarding the appointment of a Director for the Institute, Mr. SACH said that an offer had been made to a candidate, and later today, he would know if it had been accepted or not.
NAJIB ELJY (Syria) expressed serious concern over the failure to appoint the Director of INSTRAW, which had a negative impact on the activities of the Institute. He would pursue the subject further at a later date.
ERNESTO HERRERA (Mexico) said that his delegation had taken note of the explanation by Mr. SACH, but his delegation would have preferred to have a Department of Economic and Social Affairs (DESA) or Office of Human Resources Management (OHRM) representative to provide an answer to the Committee.
ASDRUBAL PULIDO LEON (Venezuela) said that his delegation was not satisfied with the explanation provided. He, too, wanted representatives from OHRM or DESA to provide responses to the Committee. One of the conclusions of the report was that the Institute was operating in a “sub-optimal” manner. However, the Institute had spent a significant amount on consultants and experts. He wanted to know what those individuals had done if the Institute was operating in a state of deficit. What were the resources spent on?
ANTONIO ALARCON (Costa Rica) supported the position of Mexico and Venezuela. He also wanted a representative of DESA or OHRM to inform the Committee about the hiring process of the Director. There was a link between the appointment of a Director and the use of INSTRAW resources. Before taking any decision on the future financing of the Institute, his delegation would like to know about the state of hiring of a Director. Member States had waited more than a year for that position to be filled. Now, an explanation should be presented on the hiring process.
OLIVIO FERMIN (Dominican Republic) said that in paragraph 9 of document A/58/426 it stated that the amount of staff at INSTRAW was sufficient until the end of May 2004. However, it seemed that this was not the case, as in fact there was a very small number of staff.
Mr. SACH, responding to questions raised by delegates, said that there had been no formal acceptance of the position of Director of INSTRAW at this point. Regarding a question about the use of consultants and experts, he said that between May and September of this year, the amount of $54,000 had been used for programmes under the Gender Awareness Information System. That system had been approved as part of the work of INSTRAW.
JAN BEAGLE, Director, Division for Organizational Development, OHRM, explained why the reports under item 127, human resources management had not yet been submitted. She said that there had been a delay in the submission of documents on the composition of the Secretariat and the staff of the United Nations Secretariat due to a number of factors, including a change of personnel and the development of new automated processes. The reorganization and reprogramming involved had taken longer than expected. These new processes would improve the integrity of all data reporting, she said.
Mr. ELJY (Syria) said that his delegation was concerned by the delay in the production of the aforementioned reports. The case should be an exception and he hoped that the situation should not recur in the Fifth Committee session.
BRUCE RASHKOW, Director of the General Legal Division, said that a written response had been prepared on the legal basis of the smoking ban at the United Nations premises and he was ready to provide responses to delegates’ questions, as well.
VASILY V. GRUZDEV (Russian Federation) asked if the Secretariat was prepared to acknowledge that the administrative instructions totally banning smoking had de facto cancelled the General Assembly resolution on the matter. Did the Secretariat believe that the administrative bulletin was in direct contradiction with that resolution? Wasn’t that a very dangerous precedent where a decision by the Secretariat management de facto cancelled the decision of the Assembly?
Regarding the written explanation on the legal aspect of the issue, he said that he had already taken a look at relevant articles of the Headquarters agreement and, quite frankly, his reading of that document had led him to different conclusions. The 2000 resolution of the General Assembly had established a special regime and created a rule, which regulated smoking issues at United Nations premises. Afterwards, indeed, local legislative acts had been adopted and entered into force, but it was obvious that those laws were inconsistent with the pre-existing rules regulating smoking at the United Nations.
Therefore, and that was clearly stated in section 8 of the Headquarters agreement, because of inconsistency, local laws could not be applicable within the United Nations complex. His reading of Section 8 was very clear: General Assembly resolution adopted before local legislation took precedence over any type of local regulations. The General Assembly was the legislative body of the United Nations.
[According to the written response provided by the Secretariat, section 8 of the Headquarters agreement provides that “United Nations shall have the power to make regulations, operative within the headquarters district, for the purpose of establishing therein conditions in all respects necessary to the full execution of its function”. It further provides that “no federal, state, or local law or regulation of the United States, which is inconsistent with a regulation of the United Nations authorized by this section shall, to the extent of inconsistency, be applicable within the headquarters district”.]
Mr. HERRERA (Mexico) said that in his understanding, there was no legal vacuum, because there was a General Assembly resolution, which determined where smoking was allowed at the United Nations. At this point, it would be easier to go back to the situation preceding the administrative instructions. The Assembly could discuss the issue and adopt a decision to make the situation clear. His delegation was going to convey the replies to his Mission’s legal office and would try to come up with the most appropriate solution possible.
Mr. RASHKOW said that serious and difficult issues had been raised by the delegates, which could not be easily addressed. The representative the Russian Federation had suggested an interpretation of the reading of relevant Assembly resolutions and actions of the administrations in dealing with the smoking issue. The basis of the argument was that local laws had been promulgated following the adoption of the General Assembly resolution on the matter. In view of the Russian Federation and some other Member States, the pre-existing resolution should have prevailed. The Headquarters agreement did not distinguish between the regulations which came first; it simply addressed the authority of local and United Nations regulations. As he read sections 7 and 8 of the agreement, they did not deal with the timing of the laws. They said that the way around inconsistencies was through regulation.
[Section 7 of the agreement between the United Nations and the United States provides that “except as otherwise provided in the agreement or in the General Convention on the Privileges and Immunities of the United Nations, the federal, state and local law of the United States shall apply within the headquarters district” of the United Nations.]
The fact that the Assembly resolution predated the New York City and state Smoke-free Air Act of 2002 did not mean that State and City laws were not applicable at the United Nations, he said. In his interpretation, they had to apply until there was a United Nations regulation on the matter. The issue was whether such a regulation had been adopted. If there had been a regulation in place and State and City issued a law that was inconsistent with it, a United Nations regulation would prevail.
Differing views had been expressed in that regard, he added. The fact that the 2000 resolution had been passed prior to the adoption of local legislation meant that it was not passed as a regulation in that regard. In his view, it did not constitute a regulation. The administration had decided that since now there was a local law, an administrative regulation would be issued to implement it.
Addressing another concern, he said that the administrative instructions did not overrule the Assembly resolution. It was the New York State and City law that had made it illegal to smoke in the district. What had been permitted before was changed in 2003. Now there was a local law, which in accordance with the Agreement on Privileges and Immunities, was applicable to the Headquarters district. That was the way the administration had chosen to deal with the issue. Perhaps there were other and better ways for dealing with the matter. The issue was now before the Assembly, which could proceed with a regulation, as provided by the Convention. Member States were free to take action on the matter.
Mr. HERRERA (Mexico) said that his delegation could not share many of the opinions of the legal office. He was not a lawyer, he said, but he had an idea of the scope of local legislation and the scope it should have in a specific territorial framework. In the long run, it was not a matter of whether people smoked or not; it was a question of procedure. He stressed that the legal office in his mission would review the replies received today.
DAVID DUTTON (Australia) said that the Secretary-General had acted appropriately in trying to resolve the situation. His delegation did not see that getting more and more legal opinions would bring much to this issue.
Mr. ELJY (Syria) said that he would refer this matter to his delegation’s legal adviser. He also asked whether the Secretariat applied local laws automatically and whether they were immediately implemented or whether they required a request from the host country.
Mr. RASHKOW replied that the local laws did apply to the Headquarters district and the host government did not have to do anything to make them applicable.
THOMAS A. RESPASCH (United States) said that there were serious questions of a legal nature to be asked and if delegations wished to obtain their own legal advice it was their right. His delegation’s approach was to see whether the Secretary-General’s actions were consistent with the duties entrusted to him, and the answer was yes.
ASDRUBAL PULIDO LEON (Venezuela) referred to a question raised by Russia’s representative as to whether an administrative instruction could change or abolish a resolution of the General Assembly, to which the Secretariat had answered no. What had abolished the resolution had been the law of the host country. That was disturbing. How could a law of the host country go beyond the laws and resolutions of the General Assembly? he asked.
JAIDEEP MAZUMDAR (India) highlighted the issue of the applicability of local laws. The United Nations building violated a large number of local building laws and regulations, he said. In that respect, should there not be automatic relevance of those building codes for the United Nations?
SANTIAGO WINS (Uruguay) asked whether it was a local law of the State of New York that had repealed the resolution of the General Assembly.
Mr. APATA (Nigeria) asked whether the Secretary-General’s policy pronouncement was binding for Member States. The Secretary-General could proscribe decisions for the Secretariat, but not for Member States, he said. Only Member States themselves could legally promulgate a decision whether and where to forbid smoking within the premises of the United Nations. Was it not part of his fundamental human rights to decide whether he should smoke or not? he asked. There were many regulations in the City that were applicable to Headquarters’ territory, he said, but those had not been applied. It was in the United Nation’s best interests to leave such a decision up to Member States.
FELICITY BUCHANAN (New Zealand) agreed with Nigeria that it was necessary to be very cautious on the issue. She felt uncomfortable to debate legal items in the Administrative and Budgetary Committee and would like to receive guidance on how to address the issue. The Committee had a very heavy programme of work that her delegation wanted to address. The issue was of interest to many delegations, and she did not to detract from its seriousness, but it had many aspects, including legal and human rights ones. She would prefer not to continue the debate in today’s meeting.
JERRY KRAMER (Canada) said that the Secretary-General had proceeded in a correct manner. He appreciated the legal explanation by the Legal Office. The Administrative and Budgetary Committee was not a place to discuss legal matters. The issue needed to be tackled on the basis of its substance. Even though the right of individuals to smoke could be considered their basic human right, there was no right to hurt others’ health.
Mr. GRUZDEV (Russian Federation) pointed out that some of his questions had been provided with incomplete replies. The situation was, indeed, a complex one. Of course, in 2000, the General Assembly could not have adopted a special regulation addressing local laws on smoking, because at that time such legislation did not exist. He believed that the General Assembly resolution in that situation was, of course, a stronger legal tool than any possible local regulations. If there was a contradiction, in the United Nations, the General Assembly resolution should prevail. Without even asking for Member States’ views on the matter, the Secretariat had taken upon itself to quickly implement the instructions of local authorities. But that was not its duty. Its duty was to carry out the resolutions of the General Assembly.
Now that the situation had become so confused, he continued, it was necessary to deal with the substantive aspect of the problem. All the pluses and minuses of smoking had been known for many years, and in 2000 he did not recall any of the delegations who supported the Secretary-General’s actions today objecting to the adoption of the Assembly resolution. In connection with the questions posed by the representative of India, he agreed that indeed, inside the United Nations building, many things were not in line with local legislation. Did that mean that the building would be closed immediately, or could work continue?
Mr. RASHKOW said that, while local laws applied, the United Nations still had immunity and inviolability and its activities could continue. Under the Headquarters agreement, interpretation of local laws still belonged to the Organization, although there was a commitment to implement them. As for who should decide which laws applied, such a decision belonged to Member States. That was specifically set out in the Convention on privileges and immunities. If Member States so wanted, they could adopt a regulation that local laws did not apply. That was one of the prerogatives of the Assembly. At current point, such a regulation needed to be created, however. His Office would be happy to assist the Member States in any way it could.
Regarding measures to facilitate access to the United Nations garage, Mr. TOH said that the earlier commencement of meetings as a result of Ramadan contributed to the problem, which would be temporary. The possibility of providing speedy access to delegations would be considered, but the Secretariat had no control over public streets and there were a limited number of entrances to the Garage. At the same time, it was necessary to ensure that staff got to their offices on time. The Secretariat would consult with local authorities regarding public street access to the garage.
Mr. ELJY (Syria) thanked Mr. TOH for the clarification. The problems on entering to garage were not limited to Ramadan, however. There was always congestion. His delegation proposed to open the gates on 1st Avenue to allow entry of diplomatic cars to the United Nations complex.
SUN XIAOBO (China) said that he had already noticed that some changes had taken place with regard to parking at Headquarters. The speed of entering the garage was much smoother now, for example, and the Chief of Security had also become more responsible. The Chinese delegation hoped that the departments concerned would work with the purpose of improving services and would put forward some reasonable solutions. To speed up security checks, the Secretariat should set a special road for the entrance of diplomatic cars. Furthermore, the training of the staff concerned should be strengthened, especially to help promote quick responses to emergency and exceptional cases.
Mr. TOH said that the feasibility of opening the 1st avenue circle entrance had been examined. However, the local authorities would not be happy with that arrangement, because it would create problems on 1st avenue, particularly at rush hour. Nevertheless, various means to ensure speedier access would be explored and it would be ensured that staff were properly trained.
UWE HAIN, Representative of the Office of Internal Oversight Services (OIOS), explaining the non-issuance of reports under item 128 on the administration of justice, said that last year the Under-Secretary-General for Management had requested OIOS assistance in eliminating the delays that were occurring in examining the material required for the reports. There had been a lot of hesitancy on the side of the Under-Secretary-General and the matter could not be pursued, however. With the arrival of the new Under-Secretary-General, this matter had been revised and the process would move forward more rapidly. He would provide this Committee with a progress report in early 2004 and the final reports would be provided in the resumed session.
NONYE UDO (Nigeria) asked what had happened to the related report to the administration of justice that dealt with possible discrimination in the Secretariat.
Mr. ELJY (Syria) said that an issue that had been repeatedly raised by his delegation was that of cooperation between different divisions related to the Office. That subject should be given heightened importance, he said. Further, there were many reports that had not yet been received and no explanations had been given.
Mr. HAIN replied that, as far as he knew, that report was near completion and delegations would be informed appropriately. He said that better cooperation between the divisions was indeed necessary and he hoped that, with the renewed leadership, progress would be achieved.
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