GA/AB/3608
23 March 2004
Staff Bulletin Recognizing “Domestic Partnership” for Entitlement Purposes Focus of Sharply Diverging Debate in Budget Committee
Secretariat Officials Say Bulletin “Neutral”; Simply Reflects Changing Laws of Members States
NEW YORK, 19 March (UN Headquarters) -- As the Fifth Committee (Administrative and Budgetary) concluded its discussion of human resources management this morning, speakers voiced sharply divergent views regarding the Secretariat’s responses to questions raised last Monday in connection with a staff bulletin issued by the Secretary-General in January to clarify the family status of staff for the purpose of United Nations entitlements.
Hearing some 50 interventions during a lengthy and heated debate, in which several delegations took the floor numerous times, the Committee focused on the paragraph of the bulletin according to which “a legally recognized domestic partnership contracted by a staff member under the law of the country of his or her nationality will also qualify that staff member to receive the entitlements provided for eligible family members”.
At the outset of the meeting, Sandra Haji-Ahmed, Officer-in-Charge of the Office of Human Resources Management, said the position taken in the bulletin was totally neutral. It did not imply a recognition in principle of the validity of same-sex marriages or domestic partnerships, but simply reflected changes that had occurred in the laws of Member States on the subject when administering the entitlements of staff members who were nationals of those Member States. There would be no discernable financial impact on common staff costs arising from the issuance of the Secretary-General’s bulletin.
The Acting Legal Counsel, Ralph Zacklin, noted that throughout the life of the Organization family status determinations had been made by reference to the national law of individual staff members’ States. The bulletin did not address the substance of same-sex marriages and domestic partnerships. The purpose of the bulletin was to indicate that the constant practice of the Secretaries-General regarding family status questions was being followed in regard to same-sex marriages.
Following the initial explanations by the Secretariat, speakers raised a series of questions, including the overriding issue of whether the issue fell within the Committee’s purview. Other questions included whether the bulletin provided a definition of marriage; how other family status issues, such as polygamy, were provided for in the staff rules and regulations; how the bulletin’s application would affect Member States whose domestic laws did not respect same-sex marriages or domestic partnerships; and whether the bulletin, if applied, would provide staff members with legal recourse for the years prior to the bulletin’s issuance.
Malaysia’s representative said if four years ago it was within the purview of the Fifth, what had changed to make it the Secretary-General’s prerogative now? That was how democracy was eroded -- a mandate was not given and then the matter was presented in a way that a decision was not needed, and it was now up to a group of persons to make a decision. Although the decision may not result in any extra-budgetary implications, issues of the budget were not out of the pocket of any individual. Every Member States needed to take part in any decision that was going to affect the amounts that came from every Member State.
Consistently opposing the provisions of the bulletin in some dozen statements, Egypt’s representative said that respect for culture and diversity, to which that document referred, did not mean imposing something on countries that was against their culture. “How do you expect us to explain to our society that we are asked to pay money for something that is against our culture?” he asked. He also wondered if the bulletin was creating a precedent, on the basis of which the Organization could be sued for the money that had not been paid out in the last 60 years.
The representative of Saudi Arabia said that Islamic law recognized only marriage between men and women and asked how many countries recognized same-sex partnerships under their national laws. He could not accept that the national law of a small number of countries would be imposed on 191 Member States.
Other delegations, however, supported the bulletin, saying it was necessary for the Organization to respect the national laws of Member States in applying the provisions for staff entitlements, and insisting that the debate should either be moved to another forum or concluded in view of its redundancy.
Canada’s representative was among the speakers who insisted that marriage definition and other substantive issues were out of the Fifth Committee’s purview. The Committee was not here to debate cultural values, he said, but to deal with administrative and budgetary matters. The action taken by the Secretary-General was within his authority and, although some delegations might feel uncomfortable with the course of action, it could not be challenged.
The representative of Australia said he was satisfied with the Secretariat’s responses and added that there was absolutely nothing before the Committee that required a decision. There was only one possible consensus, that cultural diversity of membership required that national practice could be the only basis for staff entitlements. He did not see how further discussion would lead anywhere.
Also participating in the discussion were representatives of Indonesia, Iran, Ireland (on behalf of the European Union), Canada, Costa Rica, Brazil, Kuwait, New Zealand, Norway, Bangladesh, India, Syria, Pakistan, Venezuela and Nigeria. Responses were also provided by the Director of the General Legal Division, Bruce C. Rashkow, and the Director of the Programme Planning and Budget Division, Warren Sach.
The Committee will take up the financing of the Special Court for Sierra Leone at 10 a.m. Monday, 22 March.
Background
The Fifth Committee (Administrative and Budgetary) this morning was expected to continue its consideration of several reports related to human resources management. [For background information, see Press Release GA/AB/3605 of 15 March 2003.]
Secretariat Response
Responding to requests for additional clarification to the issues discussed on Monday, SANDRA HAJI-AHMED, Officer-in-Charge of the Office of Human Resources Management, introduced a two-part written response. Part I contained comments concerning issues regarding reports on the composition of the Secretariat and the staff list. The Secretary-General attached priority to the issue of equitable geographic representation of Member States and gender parity among staff and was working on further improvement of the situation. Additional analysis showed that the situation was generally improving with unrepresented and under-represented Member States in the Secretariat. That was true also in respect of the African Group, wherein improvement in the representation, including women at the decision-making levels, was noted.
From 1999 to 2003, the number of staff members who were nationals of African Member States had increased by some 21.2 per cent, or from 189 to 229, she continued. That number had grown at a faster rate than that of the Secretariat’s total staff at the same grades and over the same period (about 12.4 per cent). The number of women staff members at the decision-making levels who were nationals of African Member States had increased from 27 in 1999 to 42 in 2003, reaching, in 2003, some 18.3 per cent of the total number of staff who were nationals of African countries at the decision-making levels.
Part II, she noted, contained clarification and information on issues with respect to the Secretary-General’s Bulletin ST/SGB/2004/4 entitled “Family status for the purposes of United Nations entitlements”. Highlighting some of the main elements, she said there were no recent changes in the Staff Regulations and Rules dealing with family status of staff members and their entitlements. The Staff Regulations and Rules did not contain a definition of “marriage” or “spouse”. It had been the consistent practice to determine the family status of individual staff members by reference to the law of the country of their nationality. That approach ensured that the Organization fully respected the cultural diversity of all its Member States.
She added that it maintained a strictly neutral position, accepting the determination made by Member States in respect of their own nationals when it came to determining the culturally sensitive matter of who was a “spouse”. The Secretary-General, as chief administrative officer, had the authority to interpret the staff regulations either directly or through a designated official.
The position taken in the bulletin was totally neutral, she said. It did not imply a general recognition in principle of the validity of same-sex marriages or domestic partnerships -- heterosexual or otherwise -- but simply reflected changes that had occurred in the laws of Member States on the subject when administering the entitlements of staff members who were nationals of those Member States. Budgetary requirements to fund staff entitlements were routinely incorporated within the overall common staff costs component of established posts and temporary assistance provisions of the programme budget. There would be no discernable financial impact on common staff costs arising from the issuance of the Secretary-General’s bulletin.
Statements
AMR MOHAMED ROSHDY (Egypt) said that according to the Office of Human Resources Management (OHRM) response, it was difficult for the Secretariat to formulate a definition of “marriage” and “spouse”. However, by stating that a legally recognized domestic partnership under the national law would qualify a staff member to receive entitlements for family members, wasn’t the Secretary-General’s bulletin providing a definition of marriage? As for the approach to the interpretation of family status explained in a 1981 memorandum, he wanted to know why that position had not been implemented until now. He understood that the Secretary-General had a prerogative of interpreting the staff rules, as a chief administrative officer. However, if there were no recent changes in the Staff Regulations and Rules, he wondered what had prompted the issuance of the staff bulletin in question.
The Secretary-General himself had said on 16 March that the issue would be before the Assembly to decide. What was the legal interpretation of that? Was the Secretary-General waiting for guidance from the Assembly on the issue? Actually, in its resolution 57/286, the Assembly had already addressed one of the aspects of the problem, when it voiced its inability to make a decision on the pension entitlements of survivors, requesting the Staff Pension Fund to examine the financial and administrative aspects of the matter. Finally, according to the response, there would be no discernible financial impact on common staff costs. What was a discernible impact?
DEWI SAVITRI WAHAB (Indonesia) said that although the staff rules did not contain a definition of spouse, they contained a reference to husband and wife. In her understanding, that did not imply same-sex marriages. Thus, the bulletin was in contradiction to the rules. She also wanted to know the history of the Office of Legal Affairs memorandum, to which the Secretariat referred in its answers. Staff regulations and rules were about United Nations staff, and their entitlements should be determined not under the laws of their countries of origin, but according to the will of Member States.
AHMED FARID (Saudi Arabia) said that interesting questions had been posed by the representatives of Egypt and Indonesia, particularly regarding the 1981 memorandum and mention of husband and wife in the staff rules. He did not agree that the position of the bulletin was neutral, as stated by the Secretariat. Also, in fact, there would be budgetary implications for the decision to extend entitlements to common-law partners, and the budget Committee needed to be involved in a decision on such a matter. He also wanted to know if the Staff Union had been consulted on the issue.
RALPH ZACKLIN, Acting United Nations Legal Counsel, said the core of the issue from the point of view of the administration, was that over the years, since the Organization’s inception, it had been the consistent practice to interpret regulations and rules on family status and make family status determinations by reference to the law of individual staff members. That principle had been followed by all Secretaries-General from time immemorial, and for good reason. In an Organization of 191 Member States, it would be impossible to administer the Organization and its staff in any other way. That principle was reflected in the 1981 legal opinion.
Regarding the 1981 opinion, between 1981 and 2004 there had been a distinctive evolution in family status issues in many countries around the world, he said. In recent years, there had been evolution of same-sex marriages or domestic partnerships. They were social issues that took time to evolve. The laws in many States had evolved to the extent that the Secretary-General felt obliged to promulgate the bulletin. The law in particular jurisdictions had evolved to the extent that the guiding principle must be followed regarding those institutions.
On the so-called neutrality of the bulletin, he said it meant that the position taken in the bulletin was a position with regard to the principle -- the basis on which the Secretary-General had interpreted the rules regarding family status issues. It was a choice of law matter. The bulletin did not address the substance of same-sex marriages and domestic partnerships. The purpose of the bulletin was to indicate that the constant practice of the Secretaries-General regarding family status questions was being followed in regard to same-sex marriages.
The bulletin, he said, did not change definitions. It simply set out a choice of law technique, which the Secretary-General was following. It did not provide for a definition. Regarding the Secretary-General’s statement that he would “wait to see what the General Assembly decided” in a press encounter on 16 March, the Secretary-General had said that he believed he had fairly interpreted the rules. What he was saying in that dialogue with journalists was that the bulletin was a proper interpretation of the rules and regulations, carried out in the proper context of his authority. He was being guided by national laws.
The Secretary-General said it because he was aware that the matter was in the Fifth Committee. He was not suggesting that the Assembly should decide the matter. He had the authority to issue the bulletin. However, if the Assembly decided to overrule, that would be a matter for States represented in the Committee. The Secretary-General was comfortable with the bulletin. He believed that he had acted within his authority and competence. Rumours that he might withdraw the bulletin were completely false.
YASSER ELNAGGAR (Egypt) said the Secretary-General was a very lucky man, because he now had officials that interpret what he said to the press. Regarding the guiding principle, which was legal opinion from the Office of Legal Affairs in 1981, had that been brought before the Assembly? Regarding evolution, the bulletin did not specifically say anything about same-sex marriage. He thanked the Legal Counsel for bringing the matter to the Committee’s attention. His understanding was that it provided for domestic partnership. The official nailed the issue on the head. The Committee could now discuss the issue, thanks to him.
Regarding the evolution of laws, for hypothetical purposes, if there was a local law implemented in “country X” in 1989, and the national of the country, a staff member, today had, according to the bulletin, entitlements, would that then provide him with a basis to challenge the Secretariat for the past years? he asked. Regarding definitions, he referred the Committee to rule 104.10, on family relationships. According to the bulletin, if enforced, would that change the language used in that rule and regulation? Regarding his interpretation of what the Secretary-General said in the press encounter, he would stick to what the Secretary-General said. He did not think anyone should interpret what the Secretary-General said.
ALIREZA TOOTOONCHIAN (Iran) asked how a conflict between the criteria of United Nations staff regulations and rules and the criteria of national laws of Member States was to be resolved. Also, could particular national laws be applicable even if its application jeopardized the public order and decency of the other national legal systems?
Mr. FARID (Saudi Arabia) asked if the Staff Union had been consulted on the matter. He also wanted to know what percentage of Member States recognized domestic partnerships under their national laws.
MARGARET STANLEY (Ireland), speaking on behalf of the European Union, said that now that the Committee was getting into the substance of the issue, it should move into informal consultations.
Mr. ROSHDY (Egypt) said although the bulletin referred to the Organization’s respect for culture and diversity, that was not actually the case. Respect did not mean imposing something on countries that was against their culture. “How do you expect us to explain to our society that we are asked to pay money for something that is against our culture?” he asked. He also wondered if the bulletin was creating a precedent, on the basis of which the Organization could be sued for the money that had not been paid out in the last 60 years. As for the proposal to move into informals, he believed the discussion should take place in an open meeting. Another important question was why the Secretariat had sought approval on the matter under discussion four years ago, when the issue was first addressed, and not now.
JERRY KRAMER (Canada) supported moving to informals, but as the debate progressed, it was less and less clear what was being discussed and what the informal consultations would be about. It had been established that the bulletin did not involve any discernible budgetary implications. Speakers had also agreed that the Secretary-General had the authority as the Organization’s chief executive officer. The Secretariat was proposing to continue to apply national law, to which no alternative had been proposed. Notwithstanding what the Secretary-General had said to the press, there was this long-standing practice and, if he wanted guidance from the General Assembly, he knew how to seek it. It was important to remember the jurisdiction of the Fifth Committee, which was not here to debate cultural values, but to deal with administrative and budgetary matters. The action taken by the Secretary-General was within his purview and, although some delegations might feel uncomfortable with the course of action, there was nothing that could challenge his authority.
ANTONIO ALARCON (Costa Rica) said that his country always defended human rights and believed in the self-determination of people. For that reason, he supported application of benefits according to national jurisdiction of States and respect for cultural diversity. He supported Canada and the European Union regarding moving to informals. Why should the discussion continue, since the Secretariat had explained that there would be no financial consequences? The topic should not be further discussed in the Fifth Committee.
Ms. HAJI-AHMED, responding to the question on consultations with the Staff Union, said the answer was no. New policies might be announced by the Secretary-General without reference to the Staff Union. On the question of decisions concerning the Pension Fund, that was not under the Secretary-General’s authority. In terms of whether there were additional budgetary implications, existing budgetary provisions reflected the overall, longer-term expenditures of the Organization and were not adjusted on a case-by-case basis on the entitlements of each staff member. Staff members might have different entitlements in the course of their career. There were a number of situations which might change staff members dependency entitlements, such as divorce.
BRUCE RASHKOW, Director, General Legal Division, Office of Legal Affairs, said it was not clear that there were other issues other than those addressed by Mr. Zacklin and Ms. Haji-Ahmed. There was not much more to respond to in the current forum.
The representative of Egypt asked what the United Nations was going to do in the case of contradictory laws.
Mr. RASHKOW said the issue had existed throughout the history of the Organization, because of its long-standing practice of looking at marriage by the government of the individual. It was not a new issue, but inherent in existing policies. The Legal department looked at matters in the context of a real issue. Beyond that, any resolution would have to await a concrete situation. In the existing policy, national laws were looked at to determine whether there were claims for entitlements.
Mr. FARID (Saudi Arabia) asked about the percentage of Member States whose national laws recognized same-sex partnerships. The bulletin was dated 30 January. Was anyone already paid according to the bulletin, and what would happen if Member States decided not to go along with the bulletin?
Mr. TOOTOONCHIAN (Iran) agreed that the discussion needed to be prolonged in an open meeting. Due to the sensitivity of the issue, delegations wanted to be able to hear from the legal officials.
The representative of Egypt wondered if the new system, if adopted, would provide a legal basis for suing the United Nations for practices it had had for years?
Mr. ALARCON (Costa Rica) said the Secretariat had provided answers on the financial implications of the matter, but the Committee was falling into a discussion of substantive issues. While polygamy was not recognized in his country, he understood benefits were granted to staff members from the countries where it was accepted. Staff members should receive benefits for any companions to whom they were married. Without discussing what marriage meant, he proposed going into informals or suspending the discussion, for the issue was not of a budgetary nature.
Ms. STANLEY (Ireland) supported Costa Rica’s position. The issue at hand was not whether Member States or the Secretary-General agreed or disagreed with the definition of marriage, but whether the Organization would continue to apply national norms. The Union recognized the Secretary-General’s prerogative. The practice of determining entitlements in accordance with family status under national law had been long established and recognized. There was nothing further to discuss.
GILDA MOTTA SANTOS-NEVES (Brazil) said that for her delegation, the authority of the Secretary-General was not in question. She endorsed Canada’s statement and added that she was not sure where the Committee was heading. The discussion perhaps belonged in the Sixth or Second Committee. According to what the Legal Office representative had said, it was a matter of choice of law and she believed it was a reasonable approach. She wanted to know what course of action the Committee intended to take.
Mr. ROSHDY (Egypt) said that desperate interventions had been made by some speakers, in particular the representative of Costa Rica. Did the United Nations grant more benefits to a man married to two women than a man married to one? If that was the case, he was prepared to accept the bulletin. That was not the case, and he did not see what polygamy had to do with the discussion at hand. Such statements showed lack of respect. He still had not received a reply to his question whether the United Nations was giving legal grounds for suing the Organization for past practices. He hoped that he would not hear any more culturally offensive comments.
Mr. ALARCON (Costa Rica) said that even if there was no common definition of marriage, the General Assembly had addressed the issue in its plan of action on children, recognizing the existence of different concepts of family in various cultures. He apologized to the delegations that had felt offended by his remarks, but all he wanted to do was stress his country’s respect for cultural diversity. His country’s culture should be respected, as well. Polygamy or same-sex marriage did not exist in his country’s legislation, but he wanted to thank the Secretariat for establishing benefits in that respect. The Fifth Committee was not the best forum for the ongoing discussion. It was necessary to look for a more appropriate forum for discussion of the substantive issues.
DEWI SAVITRI WAHAB (Indonesia) said the issue was within the purview of the Fifth Committee. It would be difficult for her to explain to her Government that some of its contributions had been used for something against its regulations.
MESHAL A.M.A. AL-MANSOUR (Kuwait) supported statements made by Egypt and Iran. He hoped the discussion would continue in the formal meeting.
FELICITY BUCHANAN (New Zealand) thanked the Secretariat for its response. The issue was about recognizing national laws. She agreed with delegations who had expressed concern about where the debate was going and whether the Committee was entering into a discussion within its purview.
Mr. HONNINGSTAD (Norway) said he fully supported the Secretary-General. Listening to the debate, Norway had a hard time understanding how the debate was enriching the Committee’s work. Was it a matter within the Committee’s purview? He saw no reason for going into informal consultations on the question.
DAVID DUTTON (Australia) said the questions raised had been answered comprehensively. The Secretary-General had acted within his authority and the long-standing principle of national practice applying to family status within the Organization. The Committee was not the place to discuss the standards that Member States had regarding family matters. Each country had its sovereign rights. National practice should continue to apply in the Secretariat. Nothing had been asked of the Assembly. While it was appropriate for delegations to ask questions, he did not see any purpose of proceeding to an informal meeting on the matter.
Mr. ROSHDY (Egypt) said that the Fifth Committee was supposed to deal with administrative and budgetary issues, and he was dealing with the issue from that angle. As for where the debate was going, it was clear that the intention was not to accept the bulletin. Even apart from substantive aspects, staff regulations were within the purview of Member States. He had raised many questions to which he had yet to receive answers, including the query on resolution 57/286 on survivors’ benefits and the language of rule 104 and whether it had been amended. The Committee needed answers and then it would be able to take decisions.
The Secretary-General had said that he tried to interpret the rules fairly and he would wait to see what the General Assembly decided, he said. Thus, what was the practice? The bulletin interpreted the rules, and Member States were not expected to react to it? Was lack of reaction considered to represent consent?
Ms. ABDUL AZIZ (Malaysia) said that she had difficulty comprehending some points made in the debate. For example, why was the issue beyond the purview of the Fifth? If the matter was out of the Committee’s purview, why was a decision sought from the Committee? If it was true that the issue was not within the Committee’s purview, she would agree that it should be taken to some other forum and brought back to the Fifth after substantive issues had been dealt with.
She was also surprised by the statements regarding the Secretary-General’s authority to decide, she continued. The matter had been brought to the Committee some four years ago, and the Committee had rejected it. If four years ago it was within the purview of the Fifth, what had changed to make it the Secretary-General’s prerogative now? She felt that was how democracy was eroded -- a mandate was not given and then the matter was presented in a way that a decision was not needed and it was now up to a group of persons to make a decision. Although the decision may not result in any extra-budgetary implications, issues of the budget were not out of pocket of any individual. Every Member State needed to take part in any decision that was going to affect the amounts that came from every Member State.
MUSTAFIZUR RAHMAN (Bangladesh) did not agree that the issue was not within the purview of the Fifth, for it dealt with the family status for the purpose of entitlements. He was also not convinced that there were no financial implications involved. It was not clear what “discernible” meant in that regard. There was a longstanding practice within the Organization, and he agreed with Malaysia’s comments on the fact that four years ago it had been an issue before the General Assembly, but now it was no longer so. If the Secretary-General failed to interpret the staff rules correctly, was it not a prerogative of Member States to discuss that? He requested the Secretariat and the Legal Counsel to answer all the questions.
JAIDEEP MAZUMDAR (India) agreed that the issue should be approached purely from a budgetary and administrative angle. He wanted to know about the outcome of the previous debate on the issue. His other question was whether the financial implications of the bulletin would be met from within existing resources.
NAJIB ELJY (Syria) noted that the Secretariat had addressed his question regarding competitive exams for Arabic interpreters, correcting the mistake in that regard. Many questions still remained unanswered, however, including some asked by his delegation during the last session.
SHOZAB ABBAS (Pakistan) said he did not agree with the Secretariat’s explanation contained in Part II, in particular that the position taken in the Bulletin was completely neutral. The matter did contain financial implications. For that reason, it fell within the Committee’s purview.
Mr. TOOTOONCHIAN (Iran) said the interpretation of staff regulations and rules was a practice. What had been the practice in the issuance of such interpretations? Referring to regulation 12.2, he noted that the Secretariat could make staff rules to implement staff regulations. He wondered about the bulletin’s status. Was it an amendment to existing rules? Apart from new or amended rules, did article 12.2 provide the possibility of any other type of provisions by the Secretariat? If implemented, was there a possibility that numerous relevant regulations and rules would be used or applied in a way different from their clear language, which referred to a husband and wife? Such issues were very controversial. Why were they not left for Member States to decide upon?
ASDRUBAL PULIDO LEON (Venezuela) said he had followed the discussion attentively. He agreed that if the implementation of the circular had financial implications or changed the regulations, it was clearly within the Committee’s purview. The Committee, however, did not have the basis to define concepts. He asked for the Budget Director or the Controller to answer whether the bulletin’s application would have budgetary implications. If the bulletin had financial implications, then the Committee should decide on the matter. If that was not the case, he suggested that arrangements be made for the item to be discussed in the appropriate forum.
Mr. FARID (Saudi Arabia) said that Islamic law recognized marriage between men and women. He could not accept that the national law of a small number of Member States be imposed on 191 countries. No one could accept that. What was the percentage of Member States that recognized same-sex marriage? There was a financial implication and the matter was, therefore, a prerogative of the Committee.
Responding to questions, Ms. HAJI-AHMED said that General Assembly resolution 57/286 dealt with survivors’ benefits and it was not up to the Secretary-General to interpret Pension Fund regulations. As for the application of rule 104.10, family relationships would be interpreted in the light of the bulletin.
Polygamous marriages were not questioned by the Organization when they were valid under the national laws of Member States, she said. The Organization made no value judgement on that type of marriage -– it accepted it as a fact. Staff members could elect to have the benefits linked to family status paid on account of any one of the wives and change the designation during the course of their service with the Organization without having to document that they were no longer married to the first spouse, as would be required from all other staff members. Should a staff member die in service, each wife would receive an equal share of the compensation benefit payable by the Organization.
Regarding application of the bulletin, she said that two cases had been implemented under Dutch law, and seven cases were currently under review. As for the number of Member States that recognized same-sex marriage or domestic partnerships – so far, the Secretariat had no accurate data in that regard.
Mr. RASHKOW addressed the question whether the bulletin constituted an amendment to rule 104.10. The OHRM had made it clear that it was a matter of interpretation in the light of developments in the law and practice of Member States. Whether the change, if adopted, would provide a legal basis for staff members to seek legal redress for the past 60 years, the simple answer was that entitlements changed over time and it was recognized by the Administrative Tribunal that changes were not retroactive, but forward-looking. There were technical rules that would bar any claims based on the change of interpretation of rules.
WARREN SACH, Director, Programme Planning and Budget Division, provided clarification regarding the statement in the response that that there would be no discernible financial impact on common staff costs. The budget for that purpose was not adjusted on a case-by-case basis each time there was a new dependent child, for example, or a dependent was no longer eligible. Those changes did not give rise to an immediate adjustment of budgetary levels, as only minor changes were involved that averaged over time. The incidence was estimated to be extremely slight for the provisions of the bulletin. Possible expenditures could be so slight that they could be less than 0.1 per cent of the common staff budget.
Mr. ROSHDY (Egypt) said that the responses had made it very clear that the Secretariat made no value judgements and that a staff member had a right to elect the spouse that should be benefiting from entitlements, which brought him back to the issue of local laws. The OHRM had made an interesting comment that the rule his delegation had referred to, 104.10, would be implemented in the light of the bulletin. For him, it was a very strong argument, because it meant that now administrative instructions determined application of the rules and regulations adopted by Member States.
From the answers, he also understood that yes, there would be slight budgetary implications, but they would be so slight that they would not force the Secretariat to go back to Member States requesting funds. However, that would be dealt with within the budget for the current biennium and for him, that was important. Whether they were slight or not, there would be financial implications. As for suing the Organization, from the answer provided he understood that changes did not give a staff member the right to sue. However, it was an acknowledgement that the bulletin did change rules -- it was not an interpretation.
Going back to the bulletin, he said that there were national laws that contained a stipulation of marriage and a stipulation of domestic partnership, which involved different entitlements under local laws. The Secretariat in its bulletin said that both would be treated equally in terms of giving them family status for the purpose of entitlements. How could that be interpreted within the context of local laws themselves? Did that not go beyond what national laws themselves stipulated?
Mr. ALARCON (Costa Rica) believed that if the issue contained small or large financial implications it should be studied in the Fifth. Regarding polygamy, he understood that if the staff member were married with a certain number of spouses, he would decide to whom benefits corresponded. Pension benefits could go to three or four people. His country did not recognize polygamy, which meant that his country paid for benefits for those people if benefits were claimed. He asked for a clarification on the matter. His delegation respected the application of local legislation and cultural diversity.
MOVSES ABELIAN, the Committee Secretary, said the issue in a different context had been discussed under resolution 55/224 and resolution 57/282, where there was a request for a report on survivor benefits. Resolution 57/282 took note of the review taken by the Pension Fund and requested the board to examine financial aspects of the matter and report to the Assembly on the topic of survivor benefits. The issue of the Pension Fund was not up to the Secretary-General to interpret.
Mr. KRAMER (Canada) said it was obvious that the social and cultural issues underlying the discussion were emotive. The fact that they were complex and controversial underlined why the Committee had to deal on the basis of clear organizational policy issues. If the Committee dealt at the level of practice, would it be a formula for paralysis? The principle outlined by the Secretary-General worked best. Saudi Arabia suggested that countries provide the benefits through their own resources. From a principle point of view, why that cluster of relationships? What about cases where adoptive children received benefits or children from families from where there was more than one spouse? Picking and choosing which relationships received benefits would tie the matter into impossible knots.
Regarding financial implications, there was no issue, he added. Staff members had the right to marry and have children. If a staff member had four children, that was the way it was. The Fifth Committee was not going to pronounce on whether staff was entitled to have twins or triplets. The Secretary-General was instructed to pay the benefits. If delegations did not like the way in which some countries established norms, they should be taken up bilaterally. Did the Pension Fund and the United Nations staff rules have a different framework in terms of the discretion of the Secretary-General?
Each country was able to develop its own social parameters and each could develop its own legislation and policies, he added.
Mr. ROSHDY (Egypt), in a point of order, said that Canada had no business in responding to that matter, as he had not referred to Canada in his statement.
NONYE UDO (Nigeria) asked the Secretary to clarify on the way forward. The Committee Secretary had given the impression that the Committee was awaiting a report at the fifty-ninth session. Would the issue be on the agenda for that session?
Mr. FARID (Saudi Arabia) insisted that an exact figure be provided on the number of countries whose national jurisdiction allowed same-sex marriage. A small percentage of national laws should not impose on a larger number of countries.
Canada’s representative had also said something about adopted children, he continued. The Committee was not talking about that, but about domestic partnerships. Could a marriage between two men result in natural-born children? He wanted to ask for more meetings on the issue until consensus could be reached.
Mr. ABBAS (Pakistan) pointed out that an anticipated financial increase of 0.1 per cent was a clear manifestation that the issue concerned administrative and budgetary matters. At least the purview of the Fifth Committee had been determined. He wanted to discuss the issue at length. It was of such a sensitive nature that it had legal, social and cultural dimensions. A great variety of countries were represented at the United Nations, and it was the right of Member States to discuss the issue in all its aspects.
Mr. ROSHDY (Egypt) demanded clear answers to all his questions, including those concerning local laws and whether the bulletin went beyond their scope. He agreed that it was necessary to allocate more time to the issue. The session could not be concluded without resolving the question under discussion.
Mr. TOOTOONCHIAN (Iran) said he had agreed more than an hour ago that the Committee could move to informal consultations, once it had received answers to questions. Since no answers had been provided to his questions, he did not know how to proceed. The proposal by Saudi Arabia and Egypt was acceptable.
The Committee Chairman, HYNEK KMONICEK (Czech Republic), said the Bureau would discuss the course of action.
Mr. DUTTON (Australia) said his delegation was satisfied with the Secretariat’s responses. There was absolutely nothing before the Committee that required a decision. There was only one possible consensus, that cultural diversity of membership required that national practice could be the only practice on which to organize staff entitlements. He did not see how a discussion would lead anywhere. Was the question of recognizing children by adoption done on a national basis? That was also part of the family status issue.
Ms. ABDUL AZIZ (Malaysia) noted that what a country did at the national level was within their prerogative. By bringing an issue to the United Nations, it was no longer a bilateral issue. It was imperative to discuss the matter within the United Nations. The Committee did not kick in only when there was an increase in budget. Even if there was no increase in the regular budget, that did not mean that the matter was not within the Committee’s purview. Also, she did not agree that discussing the issue would lead to paralysis. She asked that the answers be provided in writing, in order to move forward on the item.
Mr. RAHMAN (Bangladesh) reiterated his earlier request that all the questions be answered before going into informal consultations.
Mr. ELNAGGAR (Egypt) said there was no doubt that the matter was within the Committee’s purview. There was also no doubt that the General Assembly should decide on it. According to the quote from the Secretary-General’s press encounter, the Secretary-General said that he would wait to see what the General Assembly decided. He was referring to the Fifth Committee. In that context, the Committee needed to act on the issue. The issue should be studied further.
Mr. KRAMER (Canada) said his country did not preach bilaterally to others about their social policy, or what kind of visions of family they should have. Canada did, however, act to defend human rights and used the multilateral instruments available to do so. The two issues were not analogous. To frame it as a rights issue showed that the discussion in the Committee was straying from its administrative, managerial mandate. It was not clear that there were questions that had gone unanswered. The Bureau should consider how best to advance the discussion.
Mr. ELJY (Syria) said the large number of speakers testified to the fact that the issue before the Committee was extremely important. Both formal and informal meetings should be assigned for the subject. He also reminded the Committee that last Monday, his delegation had raised a number of questions, including those on the interpretation of the resolution freezing recruitment for General Service positions and posting of vacancies on the Internet, in particular in Arabic-language sections. He wanted to receive answers in writing.
Ms. ABDUL AZIZ (Malaysia) said that her comments in response to a previous statement by Canada regarding bilateral consultations had been based on her understanding of what had been referred to.
Ms. UDO (Nigeria) wanted to know when answers to her questions would be provided.
The CHAIRMAN of the Committee said that the Bureau would discuss how to proceed.
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