26 March 2004
Budget Committee Continues Debate on Staff Bulletin Recognizing Domestic Partnership for Entitlement Purposes
NEW YORK, 25 March (UN Headquarters) -- Returning to its debate on the contentious issue of an administrative bulletin that recognizes staff members domestic partnerships for entitlement purposes, the Fifth Committee (Administrative and Budgetary) again heard widely divergent views this morning, with speakers focusing on such legal and conceptual aspects as the definitions of family and spouse in staff regulations and rules, as well as whether the bulletin had amended or simply interpreted the rules.
While all speakers agreed on the need to respect the social, cultural and religious norms of all Member States, several speakers expressed concern that they were being asked to accept a definition of the scope of the family that not only ran counter to their domestic legislation, but also had not been accepted by the General Assembly. Some delegations continued to raise concerns that the Secretary-Generals bulletin had modified or amended the rules and regulations, while others countered that had not been the case. Representatives of the Secretariat explained that that was exactly the reason why the issue had not been brought before the Assembly.
Saudi Arabias representative insisted that, by including the word partner in the bulletin, the Secretariat had amended the rules, which mentioned only spouses and husbands or wives. The Secretariat should have asked the Assembly to review the new terminology, he said. At that point, the amendment should have been provisional and, if Member States did not find it consistent with the regulations, they could ask for its withdrawal. Even the Websters dictionary said that husband was a man and a wife was a woman married to a husband. That was a law of nature and there was a reason behind that -- preservation of humankind.
Cubas representative rejected the application of an administrative bulletin to interpret the rules and regulations of the Organization, pointing out that there was no intergovernmental agreement on the matter. The representative of Kenya wondered given that the issue of recognizing same-sex partnerships had not been accepted within any other United Nations forum, how the Fifth Committee could make an opening for the issue. She supported a call for withdrawal of the bulletin until the Assembly could consider the matter and pronounce itself on it.
The representative of Australia was among those speakers who believed that the bulletin did not constitute an amendment to the rules. He said it simply advised Member States that the Secretary-General had updated his interpretation of the matter, because national laws in some -- perhaps many -- Member States had changed. In no way did the bulletin promulgate a new concept of marriage. What it did was say that the Secretary-General would interpret the rules and regulations in accordance with national standards. The long-standing principle here was deeply respectful of cultural diversity of Member States. There was no other way to administer an organization composed of 191 States.
A similar position was held by Canada, whose representative said it was clear from the debate that the meaning of marriage, family and domestic partnerships was complex and laden with profound social and cultural content. That made it difficult to isolate the issue relevant to the Committee. As an employer, the United Nations needed to have a system to compensate staff and provide benefits for spouses and dependents. The system that had been applied for decades had been to define family status on the basis of national practice. Perhaps in an ideal world, a single definition for the United Nations could be created, but for now, and for any foreseeable future, the diversity of the United Nations membership made that impossible.
Not arguing the point -- made by several speakers, including Norway and Ireland (on behalf of the European Union) -- that the Secretary-General had the right to introduce amendments to the staff rules, necessary for the implementation of staff provisions, the representative of the Russian Federation said that staff rule 103.24 clearly defined dependents as spouses and children as first-level dependents. If the Organization wanted to pay benefits to partners, changes should be introduced to the staff rules. He did not see a problem doing that in accordance with established practice.
Also participating in the debate were representatives of Peru, Iran, Côte dIvoire, Egypt, Bahrain, Sudan, New Zealand, Pakistan, Yemen, Brazil, Bangladesh and Syria.
Secretariat responses were provided by Assistant Secretary-General for Human Resources Management, Rosemary McCreery, and Director, General Legal Division, Bruce Rushkow.
The Committee will continue its work at a date to be announced.
As the Fifth Committee (Administrative and Budgetary) met this morning, it was expected to continue its consideration of several reports related to human resources management. [For background information, see press releases GA/AB/3605 of 15 March and GA/AB/3608 of 19 March.]
ROSEMARY MCCREERY, Assistant Secretary-General for Human Resources Management, responding to delegates previous requests for additional information, noted that the first part of the written responses contained additional information on staff promoted or recruited at the decision-making levels in the Secretariat. Questions raised with regard to the implementation of the suspension of the General Service recruitment required further consultations within the Department of Management before answers could be provided, given the implications of any decision to exempt entire categories of staff suspension mandated by the Assembly.
The second part of the written responses provided further clarifications and information on the issues raised with respect to the Secretary-Generals Bulletin ST/SGB/2004/4 entitled Family status for the purposes of United Nations entitlements, she said. It had been the Organizations consistent practice to determine issues of personal status by reference to the law of the nationality of the staff member. The practice ensured that sensitive issues relating to personal status were resolved in accordance with the law of nationality of the staff member concerned, thus avoiding conflict amongst different values and fully respecting the social and cultural diversity of the staff members. The approach could create no conflict with the laws of the Member States, as it was entirely neutral.
From the Organizations foundation, the Secretary-General had exercised his authority as chief administrative officer under Article 97 of the Charter to issue policies to guide the Secretariat in the interpretation and application of the Staff Regulations and Rules. The Secretary-Generals interpretation of the United Nations Staff Regulations and Rules, however, did not prejudice any decision to be made in pension matters, which was the responsibility of the Pension Board.
As to whether the bulletin was consistent with Staff Regulations and Rules, the definitions used in the rules and regulations were broad enough to accommodate the changes, which had occurred in the national laws of staff members in respect of family status, she said. Questions of interpretation of staff regulations and rules were addressed by the Office of Human Resources Management (OHRM). When such interpretation was likely to affect a number of staff members, it had been the practice to announce it through an administrative issuance. Consultations on the bulletin had been held with both the Coordinating Committee for International Staff Unions and Associations (CCISUA) and the Federation of International Civil Servants Association (FICSA).
AHMED FARID (Saudi Arabia) thanked the Assistant Secretary-General for her response and said that by issuing the bulletin, the Secretariat was amending the staff rules and regulations. The General Assembly had not ruled on the definition of the scope of the family for the purpose of entitlements. Under the provisions of staff regulation 12.3, the full text of provisional amendments to staff rules was to be reported annually to the Assembly. Should the Assembly decide that such amendments were inconsistent with the rules, it could cancel the amendments in question.
There had been no mention of an addition of domestic partnership to the definition of marriage in the rules, he continued, and the Secretariat should have asked the Assembly to review the new terminology. At that point, the amendment should have been provisional and if Member States did not find it consistent with the regulations, they could ask for its withdrawal. In the case under discussion, the Member States had found out in January that a bulletin had been circulated that would affect the entitlements. By putting the word partner on the bulletin, the Secretariat had amended the rules, which envisioned only spouses and husbands or wives. Even the Webster dictionary said that husband was a man and a wife was a woman married to a husband. That was a law of nature and there was a reason behind that - preservation of humankind. It was Gods law. At the beginning, there was Adam and Eve, and not Adam and Steve.
MARIA ARCE DE GABAY (Peru) said that having followed the discussions in the Fifth Committee and carefully considered the issue, she supported the Secretary-Generals initiative, for it was within his jurisdiction.
ALIREZA TOOTOONCHIAN (Iran) said that reference had been made to a memorandum dated 1981 on the application of national law for personal matters. Was that memorandum issued as a bulletin or a document of the General Assembly? As all of the arguments put forward by the Secretariat were based on that memorandum, what was its status? Another question regarded the assertion on the question of husband and wife. He had stated in the previous meeting that there were many staff regulations and rules, which referred to husband and wife. If the bulletin were implemented, was there a possibility that those regulations and rules would be applied in a way that was different from the clear language of husband and wife?
MARGARET STANLEY (Ireland), speaking on behalf of the European Union, confirmed that the Secretary-Generals bulletin did not amend the staff regulations and that the Secretary-General had the right to provide and enforce staff rules. The 1981 memorandum from the Office of Legal Affairs put in to writing the Organizations practice to determine family status by reference to the national law of staff members.
EMMANUEL DATE-YAO (Côte dIvoire) said the Fifth Committee had before it a burning and sensitive topic that went beyond its competence to make administrative, budgetary and financial decisions. His first reflex was that the Secretary-General was using his highest authority to interpret the text. Perhaps there was a problem in the concept of definition. All dictionaries in all official languages provided a single definition and universal approach to the idea of spouse. They were legally and sexually distinct.
YASSER ELNAGGAR (Egypt) asked for clarification regarding paragraph 1 of the bulletin, where it referred to staff members who had more than one nationality, saying that the Organization would recognize under applicable rules the nationality of the State with which the staff member was most closely associated. In his understanding, the nationality of the staff member was the nationality of the country from which he or she had been recruited.
At the previous meeting on the matter, a Secretariat representative had made reference to the Administrative Tribunal judgement regarding forward-looking and non-retroactive application of the administrative instructions, he continued. That reference had been made in response to a question whether the bulletin would open the door to lawsuits against the Organization. However, citing a memorandum from the Administrative Tribunal, he said that his understanding was that nothing prevented retroactive use of an amendment of staff rules where it applied to benefits after the entry into service.
The Secretariats reply provided today referred to the 1981 memorandum, which had been needed because of the lack of a definition of terms such as spouses and marriage. According to the response, the memorandum formulated a choice of law technique, which did not address the validity of the contents of particular national laws and fully respected the social and cultural diversity of staff members. If that principle had been adhered to and recognized by the Secretariat since 1981, then what had prompted the issuance of the bulletin in 2004? He also had questions in connection with the statement in the response regarding the use of local law to determine the family status of staff members and not the benefits that could flow from that status. He also had questions regarding the reference in Secretariat answers to Article 97 of the Charter regarding the authority of the Secretary-General to issue rules and policies to guide the Secretariat in the interpretation and application of staff regulations and rules.
As for the interpretation, he asked if the rules and regulations should be applied in the light of the bulletin, or vice versa? Returning to the issue of pension benefits, he recalled that it had come before the Assembly, which had not taken any decision on the matter, requesting more information. As for a relatively small number of countries that recognized domestic partnerships, that issue had been raised at the last meeting. The Secretariat had been requested to provide exact numbers.
Mr. BERTI (Cuba) said that his delegations position of principle was that there should be no discrimination for reasons of sex, culture or religion. Despite that, Cuba could not accept the use of the administrative instructions to promote the concepts of sexual orientation. There was no intergovernmental agreement on the matter, and he rejected the application of an administrative bulletin to interpret the rules and regulations of the Organization. For that reason, he proposed that the application of the bulletin be suspended till the Assembly ruled on it.
DAVID DUTTON (Australia) thanked the Secretariat for its responses to the questions raised. He wanted to make a brief comment, reaffirming that the Secretary-General had acted quite appropriately to interpret the rules. The bulletin did not constitute an amendment to the rules - it simply advised Member States that the Secretary-General had updated his interpretation of the matter, because national laws in some - perhaps many - Member States had changed. In no way did the bulletin promulgate a new concept of marriage. What it did was say that the Secretary-General would interpret the rules and regulations in accordance with national standards. The long-standing principle here was deeply respectful of the cultural diversity of Member States. There was no other way to administer an organization composed of 191 States.
ARNE BIRGER HONNINGSTAD (Norway) said the Secretariats answers had affirmed that it was in the Secretary-Generals authority and purview to issue the bulletin. There was no doubt that a discussion that centred on a definition of spouse and family would be going down a blind alley. The staff rules and regulations did not contain a definition of family status. There was only one principle to be followed, namely national legislation. It had been said that strange practices and strange laws were being forced on other member countries. That was an irrelevant argument for the discussion. He was sorry to see that the discussion had had an unfortunate impact on the issues the Committee was considering. The Committee should not spend too much time on the issue.
EBRAHIM MUSTAFA HUSAIN AAMER (Bahrain) said his country, which used Islamic principles, was open, civilized and recognized all religions. Legal marriage must be between a man and woman. It was a natural and holy relationship that should be recognized and preserved. The Organization should provide entitlements with a view to preserving that core foundation of society and mankind. He cautioned against setting a precedent in the United Nations and taking measures that did not represent all beliefs and religions.
Mr. FARID (Saudi Arabia) noted that the Secretariats response on the issue of prior practice in issuing interpretations of staff regulations and rules, explained that when a question of interpretation of staff rules arose in individual cases, the interpretation was provided by the OHRM. It then used the introduction of flexible working arrangements as an example of that. The two issues could not be compared. The case before the Committee was introducing a new terminology, not heard since the United Nations inception, namely domestic partnership. While the OHRM could enforce flexible time, they could not introduce a new terminology. Also, he had asked about the number of States that recognized domestic partnership. The Secretariat said it was not in a position to provide statistics on that matter. The Secretariat should do its homework and provide an answer.
The Secretariat had also not responded to the question whether any staff member had been paid since the introduction of the bulletin, he said. What would happen if the General Assembly would not go along with the bulletin, and decide that it would be null and void? What would happen to the money paid to the staff member? Would the staff member be asked to return the money, in which case the staff member would probably sue the United Nations? If someone approached him saying he was going to get married, he would not even question whether the marriage would be between a man and woman. He wanted to make that point clear.
MAGDI M. TAHA (Sudan) supported the statements by Iran, Saudi Arabia and Egypt.
FELICITY BUCHANAN (New Zealand) said that the United Nations was, of course, a diverse Organization reflecting the cultural diversity of Member States. However, it needed a system for determining and administering staff allowances. From the Secretariat response, it was clear that a long-standing principle of respect for national laws applied to marriage, its dissolution and dependent children. That was the scope of discussion in reference to the bulletin in question. In that connection, she wanted to know what alternative existed to the practice of recognizing national laws to ensure that the Organization could function properly.
For New Zealand, she continued, the national law practice made sense. It recognized the diversity of Member States and ensured that New Zealand nationals were governed by New Zealand laws, as Ugandan citizens were governed by Ugandan laws. She did not think it would be appropriate for New Zealand laws to be applied to other States, and similarly, it would be unacceptable if national laws of other countries were imposed on New Zealand citizens. The Secretariat should confirm that the bulletin had no intent to impose national laws of any Member State, but rather intended to apply national laws for the payment of benefits.
She also asked for clarifications regarding the 1981 memorandum, for it was her understanding that the principle of determining the family status by reference to the law of nationality had not been elaborated in 1981 and that it had been in place since the inception of the Organization. Also, within the life of the Organization, other matters had come up that could have proven contentious, including those relating to divorce or other questions relating to spouses. It was her understanding that they had not been brought before the Assembly, and that was appropriate in view of the principle of respect for national laws.
AIZAZ AHMAD CHAUDHRY (Pakistan) thanked the Bureau for allocating time for further consideration of the matter. Now it was up to Member States to make the best use of the time to resolve the important issue under discussion. The importance of the question was actually manifesting itself in the fact that it was already coming up in the Population and Development Commission.
Turning to the legal effect of the practice, he recalled that in the Cairo document of the International Conference on Population and Development, different forms of family had been recognized under the chapter dealing with family, but many Muslim countries had placed reservations and had not accepted that provision. He did not intend to enter into a substance debate, but if the practice was allowed to continue, would it create a legal precedent within an Organization responsible for international laws? Would it, therefore, affect international law on the issue? The Organization was placed in a difficult position from that point of view.
As for the administrative effect of the practice, it was clear from the response that, as chief administrative officer, the Secretary-General had the authority to interpret and apply the staff regulations and rules, but there were also regulations adopted by the General Assembly. From the answers provided, it was also not clear if a study had been carried out to make sure that the bulletin was in conformity with the regulations. The budget of the United Nations was primarily used for the payment of the salaries of staff. What effect would the bulletin have on the countries that did not recognize the practice, but paid dues to the Organization, including for the payment of entitlements that it did not recognize. It was time to deal with the issues in question in a more serious manner, and he hoped the Committee would be able to resolve them.
Mr. ELNAGGAR (Egypt) said the issue before the Committee was as important as all other issues. He had raised a question regarding the application of national laws and the conflict of national laws. If there were a study on the issue relating to awarding domestic status to domestic partnership, how would it apply within the context of national laws, and national laws of the host country? Another question had been raised on the number of countries recognizing domestic partnerships. In some countries, national laws differentiated between the concept of marriage and domestic partnerships. There was also a differentiation between the entitlements awarded. From that point, did the bulletin go beyond national laws, in that it awarded family status to both?
He also wanted to hear answers on the issue of the financial implications. In addition, he wanted a clear answer on the introduction of new terms not agreed upon in other fora and on the terms that had no mention in the staff regulations and rules. In all of the Organizations rules and regulations references were made to the traditional form of family. Did that not make the bulletin an amendment to the rules? he asked.
He said he also wanted a clear answer on the application of national laws. He had no problem with the application of national laws, as long as all national laws were applied to the nationality of the staff member. Specific narrow application of national laws should be across the board. There should not be a weighted application for a weighted national law.
ABDULMALIK AL-ERYANI (Yemen) said the Secretary-Generals bulletin might promote new concepts that ran counter to his culture, as well as divine religions and human nature. He hoped the bulletin would be reconsidered.
Mr. KOVALENKO (Russian Federation) expressed satisfaction that the discussion was taking a practical turn. It was purely a procedural and legal matter. He did not wish to dwell on the social, religious, or cultural differences among Member States. Of course, all such differences existed and were the basis of the Organizations strength. He did not dispute the fact that the Secretary-General was reminding the Organization that, pursuant to long-established practice, personal status was determined by the law of the nation of the staff member concerned.
He said the question of entitlements or benefits was determined by the rules and regulations. The fact was that staff rule 103.24 clearly stated that those who were dependents were spouses, children, and first-level dependents. If the Organization wanted to pay benefits to partners, changes should be introduced to the staff rules. He did not see a problem doing that in accordance with established practice. The Secretary-General had the right to introduce amendments to the staff rules, necessary for the implementation of staff provisions. It was obvious that it was a simple and clear matter of principal.
GILDA MOTTA SANTOS-NEVES (Brazil) said her delegation was fully satisfied with the information provided by the Secretariat. She supported the authority of the Secretary-General to interpret the rules and regulations and understood that the policy here was the choice of law - not new concepts. That was a very balanced choice, for 191 countries were represented in the Organization. She agreed with the speakers who had said that the strength of the Organization was its diversity. That was why she did not understand the importance of providing the exact number of countries that recognized domestic partnership. If it were only one country, its citizens should get the benefits in accordance with national laws. A Brazilian staff member, for example, seeking benefits in accordance with national laws should receive them.
MUSTAFIZUR RAHMAN (Bangladesh) thanked the Secretariat for its responses and said he was expecting answers to the questions posed today. Most of todays answers were just a repetition of what had been provided at the previous meeting on the subject. They mostly referred to the long-standing consistent practice of applying national laws and interpretation. If that was so, then why had the bulletin just been issued? He also had a question about interpretation, for having looked at Article 97 of the Charter, he did not find anything regarding the Secretary-Generals authority to interpret rules. Also, the matter under discussion was not simply a question of interpretation. Everybody understood the gravity of the issue.
ALBINA CHEPKOECH CHEBOMUI (Kenya) stressed the importance of the sensitive issue under discussion. In her country, union between same-sex partners was a punishable offence under the law. Traditionally, the concept of family was based on the concept of a union between a man and a woman. Talking about the new concept of domestic partnerships created a lot of questions for her delegation. Could they include household pets, for example? The understanding of her delegation was that the bulletin constituted an amendment of staff regulations and rules in regard to the concept of marriage and family.
The issue of recognition of same-sex partnerships had not been accepted within any other forum of the United Nations, she continued. How could the Fifth Committee now make an opening for it? She supported a call for a breakdown of national laws to know which countries accepted same-sex partnerships. She also supported a call for withdrawal of the bulletin until the Assembly could consider the matter and make a pronouncement on it. The Organization had been formed by Member States, and every country should have a right to voice its opinion on the issues that affected them, directly, or indirectly.
During the fifty-fifth session, when discussing the pension benefits, the General Assembly had requested the Pension Fund Board to examine the consequences of the matter. Perhaps if the Secretary-General had waited for the outcome of that study, it would have provided guidance on the direction to take.
MOHAMMED NAJIB ELJY (Syria) noted that rules and regulations at times talked about the staff member in the masculine and sometimes in the feminine. The traditional concept of the family was the concept found in the staff regulations, which did not allow for any other interpretation. He asked the Secretariat to confine itself to agreed upon terminology found in all dictionaries of the world.
He also noted that he had posed questions about staff member recruitment and a freeze in certain categories, including language and General Service staff. He had also asked about the staffing table. He requested an official reply in that regard.
Ms. STANLEY (Ireland), speaking on behalf of the European Union, reaffirmed that the Union respected the cultural diversity of all Member States, and that it expected equal respect from all Member States in return.
Mr. FARID (Saudi Arabia) said that respecting national laws was one thing, but participating in the payment of entitlements on a subject that went against his national law was another. The law of his country did not recognize domestic partnerships and could not participate in a financial burden that included paying entitlements to staff members with national laws that recognized such partnerships. Respect for national laws was one thing. Imposing national laws on the United Nations was another. Those countries should pay the benefits. Marriage was between a man and a woman, he said.
Mr. TOOTOONCHIAN (Iran) regarding the development of national law in certain countries, asked what was the mandate of the Secretariat to follow developments and reflect them in the bulletin in order to universalise them?
Mr. DUTTON (Australia) said it was important to respect each nations own practices. The Fifth Committee was not the place to discuss what was an acceptable family. The discussion should be about an administrative question and the principle of applying national law for administrative purposes within the United Nations. On the financial aspect, there were already situations in which the Secretariat had applied national laws to spouse and dependent children.
JERRY KRAMER (Canada) said that it was clear from the debate that the meaning of marriage, family and domestic partnerships was complex and laden with profound social and cultural content. That made it difficult to isolate the issue relevant to the Committee. As an employer, the United Nations needed to have a system to compensate staff and provide benefits for spouses and dependents. The system that had been applied for decades had been to define family status on the basis of national practice. Perhaps in an ideal world, a single definition for the United Nations could be created, but for now and for any foreseeable future, the diversity of the United Nations membership made that impossible.
Spousal relationships were one of the keys to the benefits system, he continued. What the Secretary-General was doing was to recognize, for the purposes of benefits, those relationships that were recognized as spousal or equivalent to spousal by the countries of origin. A view had been expressed that the Secretary-General had used administrative measures to get at the question of sexual orientation. He believed the contrary was the case. The bulletin did not address any particular type of relationship. It merely recognized those that the Member States - countries of origin of staff members -- had recognized. If the Organization did not use the system of national norms, what was the alternative?
In paragraph 4, the bulletin referred to the term domestic partnership, he said. He understood that paragraph to mean that the Secretary-General would recognize for the purpose of spousal benefits, those relationships that were recognized as spousal or their equivalent by national law, and that rule
103.24, which defined dependency, would be interpreted accordingly. He wanted to know if that was the intention of that paragraph or whether there was a new concept that the term domestic partnerships intended to introduce.
Mr. ELNAGGAR (Egypt) agreed that it was imperative that all national laws were respected and he hoped that the Committee would not get into the substantive debate on the issues, limiting itself rather to the discussion of matters in its purview. Different definitions, cultures and backgrounds were involved, and that was reflected in the diversity of the Organization. In light of what Australia and to some extent Canada had said about rule 103.24, he wanted the Secretariat to confirm that application by the Secretariat of national laws in that context was in accordance with the letter of that rule.
Responding to questions, Ms. MCCREERY said that it would be difficult to respond in detail to all the questions raised in the debate. Diverse points of view had been expressed today, and she thanked the participants for their intense interest in the matter. Several delegations had asked whether the Secretary-Generals bulletin had modified or amended the rules and regulations. Several The question had been asked if the terms husband and wife in the staff rules would be altered with the implementation of the bulletin, and the answer was no, for it did not constitute an amendment to staff rules. The technical question had been asked about the nationality of staff that would determine the applicability of those provisions. Here she recalled rule 104.8 on nationality, where it was stated that the United Nations would not recognize more than one nationality. When a staff member was legally accorded nationality of more than one State, the nationality of the State with which he or she was, in the opinion of the Secretary-General, most closely associated would be determined. Such a determination was made on the status of the Staff members degree of association. That, however, was not a flexible interpretation, and staff members could not change their nationality for benefits purposes.
On the application of the benefits from the bulletin, she said that, in all cases, the national laws recognizing unions and partnerships were recent promulgations. Where a staff member could demonstrate that his or her union was recognized by a country of origin, the benefits could be provided retroactively, if applied for within one year. Regarding the numbers involved, two cases had been approved so far, and five requests had been sent to Permanent Missions to determine if they were founded. That, in general, was the point of reference used to determine if a staff member was married. Another six cases were under review before being referred to Missions.
To another question, she answered that administratively and bureaucratically, it was extremely difficult to think of a workable alternative to the use of national norms by the Organization. If the Organization were to try to come up with some universal norms for United Nations staff members, she believed some extremely severe problems could follow. She believed national norms were the most effective way of proceeding.
Continuing, she confirmed that the Secretariat did not endorse or promote any particular form of relationship or union. Regarding pension application forms, she said that any change in that regard came under the purview of the Pension Board. As for the possible conflict between recognizing the status under the terms of the bulletin and national laws of the host countries, of course, it was the privilege and the responsibility of Member States to determine under what circumstances they granted visas to family members. Regarding divorce and other matter related to spouses and family members, that had, indeed, not been brought before the Assembly. Again, here the principle of applicability of national norms had been followed.
Regarding the last paragraph of the bulletin, she said that Canadas interpretation was correct -- it did not introduce any new categories, but simply related to spousal benefits.
BRUCE RUSHKOW, Director, General Legal Division, first addressed the role of the 1981 opinion of the Office of Legal Affairs regarding the issue of family status recognition. The question was whether that opinion represented an administrative issuance or amended any existing rule. The 1981 opinion was just that -- a legal opinion. The Office of Legal Affairs was established to provide legal advice on questions of interpretation of legal maters. Regarding the determination of family status, it had been the policy even in 1981 to refer to the law of the staff members country. Regarding the impact of that policy on the general development of international law, the United Nations was not developing the substantive rule of law, but was applying the choice of law. It did not impact directly or indirectly on the development of an international law standard in that regard, nor would it determine internationally the position of governments that had a different rule of interpreting family status.
Ms. MCCREERY, Assistant Secretary-General for Human Resources Management, noted that local national law was used to determine family status, not benefits. They were two different questions. National laws could not be used to determine benefits, which was why the Office tried to ensure that benefits were provided equally throughout the Secretariat. On the question of the suspension of General Service recruitment, she had stated earlier that internal consultations within the Secretariat were needed before responding to the question. She was unable to reply in detail at the current stage.
FOUAD A. RAJEH (Saudi Arabia) said there was no doubt that each country had to respect the national legislation of the other. But, just from a technical standpoint, there were certain United Nations employees whose States allowed domestic animals, such as dogs and cats, to inherit possession. Some individuals, before they died, left their entire estate to dogs and cats. Their legislation allowed for that. If a United Nations staff member left all of his property to a cat, what would Member States do? Would they pay benefits to a cat or dog?
Mr. ELNAGGAR (Egypt) said that no answers had been provided regarding the term domestic partnership and its inclusion in staff regulations. Also, returning to the question whether the Secretary Generals bulletin should be considered an interpretation or an amendment to the rules, he said that in a press release on the issue, the Office of Legal Affairs had made a strong argument that it was an interpretation. The ruling of the Administrative Tribunal had talked about an amendment. Didnt the understanding of the Secretariat that it would apply retroactively, if applied for within a year, also amount to an understanding that it constituted an amendment?
The Secretariat had provided a response on the number of cases in connection with the bulletin, he continued, but the question had been raised about the number of countries that recognized same-sex partnerships. He also recalled his earlier remarks concerning whether the bulletin went beyond the local law in equating marriage and domestic partnerships, when even the local law of a country did not equate them. He wanted to know if a study had been carried out on the retroactive application of the bulletin.
He went on to say that, according to the answers provided by the Assistant Secretary-General, what had prompted the Secretariat to issue the bulletin was that there were a number of cases -- a critical mass -- that necessitated the publication of the bulletin. He wanted to know the exact number of cases in that regard. The bulletin should have been based on a study of a number of cases over the years. If throughout the years a number of applications had been made, what had the Secretariat done with them? He hoped to receive answers to his questions in informal consultations today.
Mr. DUTTON (Australia) said that he wanted to clear a misunderstanding regarding domestic pets. The bulletin interpreted staff rules, which clearly referred to a spouse or child. He did not know of any State that included pets in that category. That did not seem to be an issue that related to staff benefits. A pet could only be classified as a household effect.
Ms. STANLEY (Ireland), speaking on behalf of the European Union, said that derogatory and inflammatory statements had been made today, which were not worthy of further debate. She called for respect for all Member States national legislation.
Mr. ELJI (Syria) recalled his previous remarks that the Secretariat was trying to reinterpret the exemption given to some General Service posts as far as a freeze in hiring was concerned. The intention of the Assembly in that regard was quite clear -- the exemption should include language revisers, in particular in the Department of Public Information and its Web site in the Arabic language. He hoped to receive a quick reply this afternoon.
Ms. MCCREERY said that in trying to apply the provisions of the General Assembly resolution it was necessary to look carefully at the categories exempted from the freeze. More time was needed to consult on the issue, which could have extensive implications regarding the number of categories of staff exempt from the freeze.
On the issue of domestic pets, she said that issue should not be confused with domestic partners. They were two separate issues. In certain countries, people could leave their estates to domestic pets. For the United Nations, beneficiaries must be human beings in the normal definition of the term. Domestic pets were also not considered personal effects. They were the sole responsibility of the staff members.
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