BUDGET COMMITTEE TAKES UP PROPOSALS TO ENSURE EQUALITY IN COMPENSATION OF INTERNATIONAL COURT OF JUSTICE JUDGES

14 March 2008
GA/AB/3841

BUDGET COMMITTEE TAKES UP PROPOSALS TO ENSURE EQUALITY IN COMPENSATION OF INTERNATIONAL COURT OF JUSTICE JUDGES

14 March 2008
General Assembly
GA/AB/3841
Department of Public Information • News and Media Division • New York

Sixty-second General Assembly

Fifth Committee

32nd Meeting (AM)

BUDGET COMMITTEE TAKES UP PROPOSALS TO ENSURE EQUALITY IN COMPENSATION

OF INTERNATIONAL COURT OF JUSTICE JUDGES

 

Also Begins Consideration of Measures Aimed

At Retaining Staff of Tribunals for Rwanda, Former Yugoslavia

Stressing the importance of ensuring full equality in the remuneration of all members of the International Court of Justice, several speakers in the Fifth Committee (Administrative and Budgetary) this morning insisted on the need to address the unintended impact of General Assembly resolution 61/262, which, effective 1 January 2007, set a new annual net base salary for members of the International Court of Justice and judges and ad litem judges of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

The representative of the Philippines said that measures contained in resolution 61/262 resulted in inequality among members and ad hoc members of the International Court of Justice elected before and after 1 January 2007.  Those chosen after that date would receive compensation substantially below the level of that being received by those elected before 1 January 2007.  Complete equality among judges was essential to the adjudication of international disputes among States and was fundamental to ensuring that the sovereign equality of States, which underlined the international legal system, was upheld.

He said that the problem of inequality among the judges was clearly illustrated by the situation in the pending territorial and maritime dispute between Nicaragua and Colombia, wherein one ad hoc judge had been appointed before the adoption of resolution 61/262 and one after.  Thus, a situation had been created where the nominee of one party to a dispute was afforded treatment less than that of the nominee of the other party.  Such a situation could seriously undermine the integrity of the Court’s proceedings and would run counter to the fundamental principle of sovereign equality, which was the lynchpin of all multilateral institutions.

Inequality among the members of international tribunals could not have been the intended result of resolution 61/262, he said.  For that reason, there needed to be a positive and affirmative outcome from the Assembly that would directly, concretely and effectively address the legitimate concerns of the International Court of Justice through an increase in the net base salary to a level that would uphold the principle of complete equality among the members of international tribunals.

Similarly, the representative of Antigua and Barbuda, speaking on behalf of the “Group of 77” developing countries and China, expressed concern that a situation had been created where the principle of equality of International Court of Justice members and ad hoc judges was not preserved.  Reaffirming strong support for the preservation of the principles of the Charter of the United Nations and the Statute of the International Court of Justice, he expressed the Group’s commitment to ensuring the equality of salaries and conditions of service of all judges.  The Group, he said, was willing to adopt a decision in line with the suggestions by the Secretary-General on the two possible ways of protecting the level of remuneration and the equality of members and ad hoc judges of the International Court of Justice, without affecting the decision of the General Assembly to abandon the floor/ceiling mechanism.

The United States representative noted that the General Assembly, during its sixty-first session, had taken a decision to align the system for compensating Court and tribunal personnel with the common system approach.  Member States had determined that the salary of the judges should consist of a net base salary, plus post adjustment.  Concerning the new proposals of the Secretary-General for determining compensation, he said that the United States shared the concern of the Advisory Committee.

Earlier, Sandra Haji-Ahmed, Officer-in-Charge of Human Resources Management, outlined the two options proposed by the Secretary-General to remedy the effects of the General Assembly resolution.  Under the first, and considering that the seat of the Court is at The Hague, salary of the members of the Court as well as the judges of the Tribunals, would be established in euros at the current level.  That option would be simple to administer and would ensure the stability of the salaries of the members of the Court.

The second option would be to maintain the current system of salary, approved by the Assembly in resolution 61/262, whereby the salary of the judges consists of a net base salary and a corresponding post adjustment per index point equal to 1 per cent of base salary, she went on.  However, in order to maintain equality in the level of compensation paid to the judges, an adjustment in the current level of the base salary would have to be made.

Susan McLung, Chairman of the Advisory Committee on Administrative and Budgetary Questions, referring to the first option, said that the implications of establishing salaries in a currency other than the United States dollar needed to be fully analyzed, as salary levels for professional and higher-level staff within the United Nations common system were based on the dollar, with adjustments for inflation and currency fluctuations through the post adjustment system.  Thus, establishing salaries in another currency would be a significant departure from current practice.

With regard to option two, she recalled the Assembly’s previous decision, in resolution 61/262, that the salary of the judges should consist of a net base salary and a post adjustment amount.  In that regard, the Advisory Committee said the Assembly would need to examine the impact of the implementation of that resolution on the position of ad hoc judges engaged prior to, and subsequent to, the adoption of the resolution and sitting on the same cases.

The representative of Slovenia, who spoke on behalf of the European Union, said that the new system was linked to the system that applied to Secretariat officials, while recognizing the special character of judges of the International Court of Justice as elected members of one of the principal organs of the United Nations.  Every effort had been made to ensure that that new system not only fulfilled the objective of harmonizing and simplifying organizational procedures, but that it also did not have a negative impact on any serving judge.  Taking note of the concerns of the International Court of Justice that the remuneration system set out in resolution 61/262 was not in conformity with the principle of equality of all judges, she said that the European Union stood ready to examine the Secretary-General’s proposal, bearing in mind those concerns.

Also today, the Committee discussed the proposals on the appropriate incentives to retain staff of the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia.

The representatives of Mexico (on behalf of the Rio Group), Singapore, Uruguay, Argentina, Nicaragua, Djibouti, Chile, Brazil, Peru, Sudan, Ecuador, Japan and Cuba also addressed the Committee.

The Committee will take up the strengthening of the Department of Political Affairs at 10 a.m. Monday, 17 March.

Background

The Fifth Committee (Administrative and Budgetary) met this morning to consider the conditions of service of the members of the International Court of Justice and judges of the Tribunals for the Former Yugoslavia and Rwanda.

The Committee had before it a report of the Secretary-General on conditions of service and compensation for officials other than Secretariat officials:  members of the International Court of Justice and judges and ad litem judges of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (document A/62/538).

The report deals with the proposals for an update in travel and subsistence regulations for the International Court of Justice; annual remuneration; retirement benefits of the judges; the retirement benefits and pension benefits of the judges of the Tribunals; and pensions in payment.

According to the document, the regulations approved in resolution 37/240, provided for first-class accommodation for International Court of Justice judges.  However, since then, standards of accommodation have evolved considerably, with first-class air travel now restricted to a limited number of cases and most senior officials authorized to travel at “the class immediately below first class”.  In that light, the Advisory Committee, in a previous report, was of the opinion that the travel and subsistence regulations approved in 1982 should be reviewed and updated in line with the current standards of the Organization.

The Secretary-General then reviews comments by the Court that:  the treatment of its members had traditionally been at least comparable to that of general directors of specialized agencies and that current travel and subsistence regulations of the Court reflect that tradition; that although first-class travel is authorized under the autonomous regime created by resolution 37/240 for members of the Court, judges in fact almost always travel at a lower standard of accommodation and that first-class air journeys are made only on long-haul international routes; and that the current travel policy applicable to serving members of the Court, in particular judges who have opted for non-resident status, form part of their terms and conditions of service, raising the question as to whether, under the terms of the Court’s Statute, a judge’s conditions of service may be modified to his or her detriment during the term of office.

Considering those reviews and the sui generis nature of their conditions of service, the Secretary-General requests that consideration be given to maintaining the current standard of accommodation for the members of the Court, which provides for first-class accommodation.

With regard to travel and subsistence regulations, the Secretary-General expresses his view that the amount of the assignment grant should be based on the standard subsistence rates promulgated by the International Civil Service Commission, and thus recommends no change for article 3, paragraph 1 (a) (ii), of the travel and subsistence regulations of the Court.

With respect to the level of annual remuneration, the Secretary-General recommends that, in order to maintain the basic principles set out in the Statute of the Court, Member States should consider two options.  Under the first option, and considering that the seat of the Court is at The Hague, in the Netherlands, Member States should consider establishing the salary of the members of the Court as well as the judges of the Tribunals in euros at the current level, i.e., €174,708 per annum.  This option would be simple to administer and would ensure the stability of salaries of the members of the Court.

The second option would be to maintain the current system of salary, approved by the Assembly in its resolution 61/262, whereby the salary of the judges consists of a net base salary and a corresponding post adjustment per index point equal to 1 per cent of base salary.  However, in order to maintain equality in the level of compensation paid to the judges, an adjustment in the current level of the base salary would have to be made.

An addendum to the Secretary-General’s report on the judges’ conditions of service (document A/62/538/Add.1) contains a letter dated 4 October 2007 from the Registrar of the International Tribunal for the Former Yugoslavia addressed to the Secretary-General on the pensions of the judges of the International Tribunal.

The letter estimates the replacement costs for permanent judges at the International Tribunal at approximately 79,000 euros per judge.  It says that, since its inception, the Tribunal has seen the renewal of 16 permanent judges, rather than their replacement, achieving significant savings.  Further savings can be realized if judges’ terms of office are renewed in the future.

It adds that financial costs of replacing permanent judges cannot be measured only in terms of costs of new appointment, as with each departure institutional knowledge and specific expertise was lost and must be acquired by the replacement judge.  Thus, the retention and continuity of judges was essential for the Tribunal to maintain the fast pace of trial activity, as well as the quality of work and high standards expected.  It is clear that non-renewal of the mandates of permanent judges would have serious impact on the ability of the Tribunal to complete its work expeditiously.

The letter notes that the pension scheme for judges of the International Criminal Tribunal for the Former Yugoslavia does not reflect substantial equivalence with the pension for judges of the International Court of Justice and said that the Tribunal’s proposal to grant them parity with judges of the International Court of Justice in terms of pension entitlements will motivate them to remain at the Tribunal rather than return to their national service to secure their pension entitlements following the completion of trials.

A letter from the Secretary-General to the President of the General Assembly (document A/C.5/61/19) transmits a request from the Registrar of the International Criminal Court inviting the Assembly to consider amending the pension scheme regulations for the judges of the International Court of Justice, International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda, in order to ensure that no former judge of those courts or tribunals receives a United Nations pension while serving as a judge of the International Criminal Court.

A report of the Secretary-General on the comprehensive proposal on appropriate incentives to retain staff of the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia (document A/62/681) responds to the Assembly’s request, in its resolution 61/274, for a report on the implementation of measures for staff retention, in connection with its noted concern that there might be difficulties in retaining and recruiting key staff as the Tribunals complete their mandates.

As indicated in the report, the Tribunals’ approved 2008-2009 budgets reflect redeployment of posts from trial to appellate support work and phasing out of 349 posts (33 per cent) in the International Criminal Tribunal for Rwanda and 258 posts (26 per cent) in the International Tribunal for the Former Yugoslavia as a result of the anticipated reduction of first-instance trial activity in the second half of 2009.  The Tribunals project a further significant reduction of posts, commencing in early 2010, when it is anticipated that all trials will be in the appeals stage, except for three pending cases in the International Tribunal for the Former Yugoslavia, which are due to be completed in 2010.

The Tribunals have initiated a number of non-monetary incentives intended to retain staff until their posts are no longer required.  They are aimed at broadening career options for staff when they leave the Tribunals, improving working conditions and assisting staff in dealing with host country residency and administrative issues.

Arguing that a combination of monetary and non-monetary measures will make an important contribution to the ability of the Tribunals to minimize staff losses, the Secretary-General recommends that a financial incentive be approved for staff remaining in their posts until their functions are no longer needed.  He further recommends that the retention incentive be applicable on as wide a post coverage basis as possible, as both management and staff representatives are of the view that to designate specific and/or limited groups of staff as “key”, and then grant them the incentive would most likely result in the perception of unequal treatment.

The report also states that the cost/benefit analysis conducted by the Tribunals showed clearly that the financial implications of the retention incentive were more than offset by the savings associated with reduced turnover rates in terms of lower rotation costs and higher productivity and efficiency.

The Secretary-General proposes three alternative approaches for the calculation of the amount of the retention incentive.  Under option A, the retention incentive would apply to eligible staff having completed at least two years of service with the Tribunals at the time that the incentive is due.  The financial implications of this measure are estimated at $11.2 million for the International Criminal Tribunal for Rwanda and $12.1 million for the International Tribunal for the Former Yugoslavia.

Option B envisions the application of the incentive to eligible staff having completed at least five years of service with the Tribunals at the time that the incentive is due.  The financial implications are estimated at $6.9 million for the International Criminal Tribunal for Rwanda and $7.2 million for the International Tribunal for the Former Yugoslavia.  And under option C, the incentive would apply to eligible staff having completed five years of service with the Tribunals and be capped at an amount to be set by the General Assembly, either in terms of a fixed number of months of salary or a fixed incentive payment.

The Advisory Committee on Administrative and Budgetary Questions, in a related report (document A/62/734), commends the Tribunals for measures taken to retain staff and to plan for possible staff shortages as the completion dates approach.  It requests the Tribunals to continue to explore further options for non-monetary incentives for staff until their posts are no longer required, such as their treatment as internal candidates for recruitment and selection.

In this connection, the Advisory Committee draws attention to the International Civil Service Commission recommendation that the reporting date for any new assignment of Tribunal staff offered appointments in another common system organization should be set to coincide with the completion of the staff member’s work with the Tribunal.  The Advisory Committee also recommends that the Assembly request the Secretary-General to further support the efforts of the Tribunals and encourages all United Nations offices and peacekeeping operations to cooperate with the Tribunals with regard to career and training opportunities for their staff.

The Advisory Committee recognizes the critical importance of retaining highly skilled and specialized staff in order to complete all trial proceedings and meet the targets set out in completion strategies of the Tribunals.  In view of the consequences of any delays in the completion of the work, the Tribunals should employ a variety of tools to retain the services of personnel as long as they are needed.

The Advisory Committee recommends that the Assembly authorize, on an exceptional basis, payment of a retention incentive to staff, on the basis of the criteria described under option C of the report of the Secretary-General, targeting staff with a minimum of five years of service in the Tribunals.  It recommends that the amount of the incentive be capped at five months’ salary, irrespective of the number of years of service at the Tribunals beyond five years.  In the present circumstances, the payment of the retention incentive would become effective from the biennium 2008-2009, as from a date to be fixed by the Assembly.

The Advisory Committee notes the observation of the International Civil Service Commission that special financial retention incentives for the Tribunals are not appropriate because they are not provided for in the common system and, as such, would constitute a precedent, which should be avoided.  The Advisory Committee, therefore, recommends that, should a retention incentive be authorized, administrative arrangements for such an incentive be based only on an ad hoc decision of the Assembly and not on an amendment to the Staff Rules.  The exceptional nature of such arrangements for the Tribunals would preclude their application elsewhere in the United Nations system.

Introduction of Documents

SANDRA HAJI-AHMED, Officer-in-Charge of Human Resources Management, introduced the Secretary-General’s report on the judges’ conditions of service (A/52/538 and Add.1).

Providing background on the matter, she said that the General Assembly, in paragraph 5 of its resolution 61/262, had requested the Secretary-General to review and update the travel and subsistence regulations for the International Court of Justice, taking into account the recommendation of the Advisory Committee on Administrative and Budgetary Questions in paragraph 15 of its report (A/61/612 and Corr.1) and bearing in mind the relevant provisions of the Statute of the International Court of Justice.

In paragraph 11 of resolution 61/262, the Assembly also requested the Secretary-General to submit a report to it at its sixty-second session on options for designing pension schemes for the members of the Court, and for the judges of the two Tribunals.  The Secretary-General indicated that a study on options for designing pension schemes had been commissioned from a consulting firm and would be submitted as an addendum to the report.

She also recalled that, before the adoption of resolution 61/262, the President of the Assembly had informed delegations of the receipt of a letter dated 3 April 2007 from the President of the Court expressing the Court’s deep concern that the proposed action regarding emoluments of the judges would create inequality among judges and requesting the Assembly to consider postponing action on the draft resolution.  At the time of the adoption of the resolution, a number of delegations had expressed their concerns about the issues raised in that letter and requested that they be addressed in the context of the Secretary-General’s report.  Accordingly, the Secretary-General’s report also addressed those issues.

Chairperson of the Advisory Committee on Administrative and Budgetary Questions, SUSAN MCLURG, introduced a related Advisory Committee report (document A/62/7/Add.36), saying that the Advisory Committee had no objection to the Secretary-General’s proposal that no changes be made in the International Court of Justice’s travel and subsistence regulations.  It also agreed with the recommendation that there should be no change to the regulations regarding the assignment grant.

Turning to the remuneration of the members of the Court and the judges of the Tribunals, she said that option one would establish salaries in euros and be subject to periodic cost of living adjustments.  The implications of establishing salaries in a currency other than the United States dollar would need to be fully analyzed.  Salary levels for the professional and higher-level staff within the United Nations common system were based on the dollar, with adjustments for inflation and currency fluctuations through the post adjustment system.  Establishing salaries in another currency would be a significant departure from current practice.

On option two, the Advisory Committee recalled the Assembly’s previous decision, in resolution 61/262, that the salary of the judges should consist of a net base salary and a post adjustment amount.  The Advisory Committee raised for the Assembly’s consideration the need to examine the impact of the implementation of that resolution on the position of ad hoc judges engaged prior to, and subsequent to, the adoption of the resolution and sitting on the same cases.

With regard to retirement benefits, the Advisory Committee had been informed that a comprehensive study on pension schemes would be presented during the second resumed session.  Therefore, it recommended that the Assembly defer consideration of retirement benefits of the members of the Court until that study had been received.

Statements

CONROD HUNTE (Antigua and Barbuda), speaking on behalf of the “Group of 77” developing countries and China, said that the Group was in favour of a compensation package commensurate with the high status of responsibilities of its members and judges.  In that regard, the Assembly had always tried to achieve those goals in an impartial and objective manner.  He supported the key principles enshrined in the Statutes of the International Court of Justice and the Tribunals that the salary and allowance of the judges should be fixed by the Assembly and that they may not be decreased during their term of office.  Equality among judges was a basic principle of the system of international adjudication of disputes between States.

Resolution 61/262 had requested the Secretary-General to review and update the travel and subsistence regulations for the International Court of Justice, he continued.  The Secretary-General had come up with a proposal that had encountered no objection from the Advisory Committee.  He concurred with the Secretary-General’s proposal -– and subsequent Advisory Committee recommendation -– of maintaining the current provisions of the travel and subsistence regulations of the Court.

Regarding remunerations, he noted with concern that a situation had been created where the principle of equality of International Court of Justice members and ad hoc judges was not preserved.  The Group would like to reaffirm its strong support to the preservation of the principles of the Charter of the United Nations and the Statute of the International Court of Justice.  Having considered with great interest the comments of the President of the Court, the Group wished to stress its commitment to assuring equality of salaries and conditions of service of all judges.  The Secretary-General had presented two possible ways of protecting the level of remuneration and the equality of members and ad hoc judges of the International Court of Justice, without affecting the decision of the General Assembly to abandon the floor/ceiling mechanism.  The Group was willing to adopt a decision in line with those suggestions.

He also noted that resolution 61/262 had requested the Secretary-General to submit options for designing pension schemes for the members of the International Court of Justice and judges of the Tribunals.  He regretted that such a report was not being presented at the present moment and requested that the report be available before the end of the sixty-second session.  Decisions to be reached with regard to the salaries and other allowances for any category of judges working within the United Nations system should be based on their own merit.  All other cases would be dealt with according to the prescribed procedures within respective forums.

ALESKA SIMKIC (Slovenia), on behalf of the European Union, said that the new system was linked to the system that applied to Secretariat officials, while recognizing the special character of judges of the International Court of Justice as elected members of one of the principal organs of the United Nations.  The European Union and others had made every effort to ensure that that new system not only fulfilled the objective to harmonize and simplify organizational procedures, but that it also did not have a negative impact on any serving judge.  The Union noted the concerns of the International Court of Justice that the remuneration system set out in resolution 61/262 was not in conformity with the principle of equality of all judges.  In that regard, it reiterated its support for the invaluable work of the International Court of Justice and said that it stood ready to examine the proposal of the Secretary-General, bearing in mind the concerns of the Court.

CARLOS RUIZ MASSIEU (Mexico), on behalf of the Rio Group, said that the Group had noted the concern expressed by the President of the International Court of Justice and was willing to consider those concerns with a constructive approach that would allow a solution to be reached to ensure equal treatment of all judges.  In that sense, the Rio Group considered option 2 proposed by the Secretary-General as a good basis to reach a definitive solution to the issue.  The Group considered it important that any decision reached should not create a precedent on future decisions of the General Assembly with respect to other judicial organs of the United Nations system.  Regarding the standard of travel and assignment grants of the judges, the Group agreed with the Advisory Committee that they should be kept unchanged for the moment, given the sui generis nature of the conditions of service of the judges.

HOE YEEN TECK ( Singapore) said that the Secretary-General’s report, among other things, conveyed the concerns of the International Court of Justice regarding salary differentials among judges as a result of resolution 61/262.  In that resolution, the Assembly had sought to rectify the issue of compensation for Criminal Tribunal judges, but it had a knock-on budgetary effect on the salaries among International Court of Justice judges.  In the opinion of the International Court of Justice, such differential among its judges was not consistent with its Statute and, by extension, the United Nations Charter.  As the President of the International Court of Justice had told the Assembly last November, “Equality between the judges of the ICJ is one of the fundamental principles underlying the Statute of the Court”.  Given those concerns, his delegation thought there was a case for the Committee to review the issue.

His delegation was open to considering both options presented by the Secretary-General, as well as other options.  But between the two options suggested by the Secretary-General, he saw merit in the second one.  While addressing the concerns of the International Court of Justice on salary differentials, it also allowed the Court to transition, like the rest of the United Nations to the common system, as recommended by the International Civil Service Commission.  That transition would be completed in 2013, when the last of International Court of Justice judges on the old system finished their current terms, and all Court judges would thereafter be on the common system.  He looked forward to discussion of the issue and he hoped that the existing discrepancy could be rectified quickly to the satisfaction of all, including the members of International Court of Justice.

HILARIO G. DAVIDE (Philippines) associated himself with the position of the Group of 77 and China and noted with great concern the document transmitted by the President of the International Court of Justice to the Secretary-General on the implications of resolution 61/262 in regard to the Statute of the Court.  As confirmed by the Secretary-General’s report, there was no doubt that measures contained in resolution 61/262 resulted in an inequality among members and ad hoc members of the Court elected before and after 1 January 2007.  Those chosen after that date would receive compensation substantially below the level of that being received by those elected before 1 January 2007.  Complete equality among judges was essential to the adjudication of international disputes among States.  That was fundamental to ensuring that the sovereign equality of States, which underlined the international legal system, was upheld.  The judges represented their sovereign States, and the principle of equality was rooted in the universal principles of justice and equity.

The problem of inequality among International Court of Justice judges was clearly illustrated by the situation in the pending case concerning the territorial and maritime dispute of Nicaragua v. Colombia, wherein one ad hoc judge had been appointed before the adoption of resolution 61/262 and one after.  A situation where the nominee of one party to a dispute was afforded treatment less than equal to that of the nominee of the other party would seriously undermine the integrity of the Court’s proceedings and would run counter to the fundamental principle of sovereign equality, which was the lynchpin of all multilateral institutions.

Inequality among the members of international tribunals could not have been the intended result of resolution 61/262, he continued.  For that reason, he called for a positive and affirmative outcome from the Assembly that would directly, concretely and effectively address the legitimate concerns of the International Court of Justice through an increase in the net base salary to a level that would uphold the principle of complete equality among the members of international tribunals.  Further, the matter should be resolved as expeditiously as possible.

GUSTAVO ALVAREZ ( Uruguay) said that his delegation shared the views of the Rio Group, noting that the Assembly did not fully take into account the situation arising from the Statute of the International Court of Justice in adopting resolution 61/262.  That had been pointed out by the Secretary-General.   Uruguay was convinced that it was not in the interest of the Assembly to perpetuate the current situation.  His delegation would earnestly consider the legal arguments and technical questions that had been raised and believed a solution could include some of the options that had been proposed by the Secretary-General that were satisfactory to all Member States.

ANDREW HILLMAN ( United States) said that his country remained committed to ensuring the judicial independence of the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and was committed to the principle of fair and adequate compensation for the Court and Tribunal personnel.  At the same time, it noted the General Assembly, during its sixty-first session, took a decision to align the system for compensating Court and Tribunal personnel with the common system approach.  Member States determined that the salary of the judges should consist of a net base salary, plus post adjustment.  Concerning the new proposals of the Secretary-General for determining compensation, the United States shared the concern of the Advisory Committee.  With regard to the proposals on retirement benefits of members of the Court, he agreed with the Advisory Committee recommendation that consideration of the issue be deferred until the Fifth Committee had had an opportunity to review the report that was now being prepared on that matter.

TORRES LEPORI (Argentina) supported the position of the Group of 77 and China and the Rio Group and said that the Assembly, in resolution 61/262, had put an end to the system of minimum and maximum salary limits, deciding on the recommendation of the Secretary-General that the salaries would be made of annual net base salary, with a post adjustment equivalent to 1 per cent of the net base salary.  His delegation looked with concern at the comments of the International Court of Justice and the opinion of the Legal Adviser on the consequences of the resolution.  The principle of equality was the basic principle of the Statute of the International Court of Justice and the Charter of the United Nations.  For that reason, he would like to find a solution on the basis of the Secretary-General’s proposals.  Based on the Advisory Committee position, he believed that the option of increasing the net base salary would constitute a viable way of arriving at a solution, without affecting the decision of the General Assembly to abandon the floor/ceiling mechanism and respecting the primacy of the Charter.

In conclusion, he reiterated that his delegation was prepared to find a solution that would ensure equality among the members of the Court and ad hoc judges.  That was a general principle of the administration of justice that must not be affected.

DANILO ROSALES DÍAZ ( Nicaragua) said that his delegation endorsed the position of the Group of 77 and China and the Rio Group.  Once again, he deplored the late submission of the reports of the Advisory Committee, which made it difficult to consider the issues under discussion.  The Committee had also not received a report on the pensions of the International Court of Justice members and judges of the Tribunals.  His delegation hoped that the Secretariat would respect the deadlines established by the Assembly, and the Committee would be able to consider that report before the end of the session, with seven cases before the International Court of Justice, Nicaragua had had the most recourse to international justice since the establishment of the Court.  He knew how important the impartiality of the international system of justice was.

As a member of the General Assembly, Nicaragua would continue supporting strengthening the International Court of Justice, he continued.  The Committee had competence over administrative and budgetary decisions in that area.  It was clear that resolution 61/262 had had an undesired effect on the conditions of service of the judges.  Therefore, it was of fundamental importance to guarantee equal conditions of service for all judges.  How was it possible that two ad hoc judges nominated to litigate in the same case could be paid different salaries? he asked.  He believed the solution to the problem was contained in the second option presented by the Secretary-General.  If correctly applied, it would guarantee the fundamental principle of equal pay for equal work.  The first option could have implications for the whole system, because it would call into question the procedures for determining staff salaries on the basis of the United States dollar.  It was important to safeguard impartiality of the international system of justice, and the Assembly should not fail in its duty.

ROBLE OLHAYE (Djibouti) associated his delegation with the statement made by the representative of Antigua and Barbuda on behalf of the Group of 77 and China and said that, prior to adoption of resolution 61/262, the President of the International Court of Justice had addressed a letter to the President of the General Assembly expressing deep concern regarding the proposed action on that draft resolution.  He had pointed out specifically that such an action would create an inequality among judges and had requested that the Assembly postpone action on the draft resolution to a later date.  However, that did not happen.

Paragraph 7 of that resolution decides to set a new annual salary effective 1 January 2007, he went on.  The effect of that paragraph had been that the sitting judges of the Court and the international Tribunals were not affected for the duration of their current terms of office, but that after the passage of the resolution, newly elected and new ad hoc judges became subject to the provisions of the paragraph.  Two categories of judges were, therefore, created by the application of the resolution.

Also, the “transitional measures” referred to in paragraph 8 of the resolution had already started causing problems both for the Court and the Fifth Committee, in so far as inequality among ad hoc judges sitting on the same case, he continued.  The specific case in question concerned the “Territorial and Maritime Dispute ( Nicaragua v. Colombia)”.  The difference in the compensation of the two ad hoc judges in that case arose because one had been appointed prior to the adoption of the resolution, while the other was appointed later in May 2007, after the adoption.  The Advisory Committee had been informed that a similar situation could arise in a limited number of other cases.   Djibouti was facing a similar problem with regard to the case “Certain Questions of Mutual Assistance in Criminal Matters ( Djibouti v. France)”.  Unequal treatment was contrary to Article 31, Paragraph 6 of the Statute of the Court.

He said that, in the light of the serious concerns that had been expressed by the Court and by Governments, like that of Djibouti, with regard to inconsistencies emanating from the adoption of the resolution, the Fifth Committee should now rectify the uncalled for complications, taking into account the administrative proposals suggested by the Secretary-General.

ABRAHAM QUEZADA ( Chile) said that his country strongly supported the principle of equal treatment of all judges.  In that regard, it was prepared to work constructively with regard to the report before the Committee.

FERNANDO DE OLIVEIRA SENA ( Brazil) supported the position of the Group of 77 and China and the Rio Group and said that his delegation fully supported the role of the International Court of Justice and the principle of complete equality between judges, which was one of the pivotal principles of international adjudication of disputes between States.  He also supported maintaining conditions of travel and subsistence regulations for members of the Court.

Regarding remuneration, he noted with concern that the situation had been created where the principle of equality of all International Court of Justice judges was not preserved.  The General Assembly needed to fix that situation to ensure the preservation of the principles of the Charter and the Statute of the Court.   Brazil was committed to supporting the equality of salary and conditions of service of International Court of Justice judges and would work to have a decision as soon as possible, and review unexpected results of resolution 61/262.  He also expressed support for the international Tribunals and reaffirmed the role of the Fifth Committee in the administration and budgetary matters.  The Committee needed to act now.

LUIS ENRIQUE CHAVEZ ( Peru) also endorsed the position of the Group of 77 and China and the Rio Group and supported the work of the International Court of Justice, recognizing the excellent work of the judges, who contributed to the maintenance of international peace and security by finding peaceful solutions to conflict.  Resolution 61/262 had sought to create a clearer and more transparent system of salaries for judges.  However, the text also contained elements that were a source of concern for many delegations.  In particular, as clearly argued by the Legal Adviser, the resolution was not in line with the Statute of the Court, which provided for full equality among judges.  That issue was particularly sensitive, since equality was one of the guiding principles for the functioning of the Court in resolving disputes among States.  Different remuneration inevitably eroded the principle of equality.  By freezing the amount of the salary, the resolution had also discriminated against the judges, compared with the staff of the Organization. 

While there was concern that precedent might be established by changing the provisions of 61/262, he said legal inconsistencies led his delegation to think that it would be a precedent not to correct the error.  It was necessary to rectify the situation.   Peru was in favour of making a decision during the current session and would support any solution that would restore the status quo before 61/262.  In conclusion, he added that his delegation was surprised that some delegations had attempted to make savings, but at the cost of good functioning of such an important body as the International Court of Justice.  Given an exponential increase in peacekeeping costs, they were trying to save resources at the expense of the body dealing with peaceful resolution of conflict.

MOHAMED YOUSIF IBRAHIM ABDELMANNAN ( Sudan) said that his country shared the views expressed by the Group of 77 and China, as well as those of the representative of Djibouti.  The Arab Group would put itself on the side of justice, which required the follow up of deliberations in a just fashion.  The report by the Secretary-General had taken into account the concerns raised by the President of the Court to the President of the General Assembly, as well as statements by delegations.  Two proposals had been put forward by the Secretariat.  The Sudan and the Arab group would take the time to study those proposals.

In the meantime, the Sudan wished to draw attention to question of late issuance of documents, he said.  When documents were late, or were received very shortly before consideration of the items they dealt with, it meant decisions had to be made without adequate preparation.  That contradicted the relevant principles dealing with the work of the Assembly.  The Secretariat should endeavour to provide documents to the Committee ahead of time, so that they could be studied thoroughly in order to enable delegations to adopt consistent and well-thought out decisions.

WALTER SCHULDT ( Ecuador) said that his delegation joined the statements that had been made on behalf of the Group of 77 and China and that of the Rio Group.   Ecuador agreed with option 2, as proposed by the Secretary-General.  It hoped to make further contributions on the matter during the informal discussions of the Committee.

Introduction

SANDRA HADJI-AHMED, Officer-in-Charge of Human Resources Management, introduced the report of the Secretary-General on the comprehensive proposal on the appropriate incentives to retain staff of the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia (document A/62/681).

She told the Committee that the 2008-2009 budgets for both Tribunals had recently been adopted and that they reflected substantial reductions in posts during 2009, as the Tribunals were completing activity.  The successful completion of those trials was contingent on retaining staff in all areas of both Tribunals.

SUSAN MCLUNG, Chairman of the Advisory Committee on Administrative and Budgetary Questions, introduced the related report of that Committee (document A/62/734), saying that, after a great deal of deliberation, taking into account the considerations outlined in its report, the Committee recommended that the General Assembly authorize, on an exceptional basis, the payment of retention incentive to staff required to remain with the Tribunals until their services and posts were no longer needed, as set out in the drawdown plans of each Tribunal.

The Committee further recommended that the calculation of the payment be made on the basis of the criteria described under option C of the Secretary-General’s report, targeting staff with a minimum of five years of service in the Tribunals.

Mr. HUNTE ( Antigua and Barbuda), speaking on behalf of the Group of 77 and China, said that the staff was the most valuable asset of the United Nations.  Without them, it would be impossible to deliver the mandates placed upon international organizations.  The Group would like to extend that sentiment to the staff of the International Tribunals for the Former Yugoslavia and Rwanda.  In resolution 61/274, the Assembly had already expressed its concern over possible difficulties in retaining and recruiting staff that would be key in the completion of the mandates of the Tribunals.  He welcomed all the non-monetary incentives that the Tribunals had initiated to retain staff, but that was not sufficient and he was concerned over the increasing financial costs that could stem from staff shortages as the completion dates for the work of the Tribunals approached and the mandates could be left without being accomplished.

The Group noted that the Secretary-General had presented the Committee with three possible options of a retention incentive, and it would favour the payment of such an incentive, as an ad hoc decision of the Assembly and without amending the Staff Rules.  He noted that the Advisory Committee had suggested a possible solution and would look forward to the negotiations to adopt the best decision possible that would allow the Tribunals to retain their valuable staff.

Ms. SIMKIC ( Slovenia), speaking on behalf of the European Union, underlined the importance of the Tribunals being able to function effectively throughout their completion phases.  Acknowledging that there might be difficulties in retaining and recruiting staff as the Tribunals drew to a close, the European Union recognized that a well-targeted and multifaceted retention incentive might be a useful tool for addressing those difficulties.  The report of the Secretary-General, however, fell short of providing complete answers to all questions raised in resolution 61/274.  The Union would, therefore, seek further clarification before taking a final decision on a possible retention package.  In its assessment of the issue at hand, it would also be guided by the helpful comments and recommendations of the Advisory Committee.

CARLOS RUIZ MASSIEU (Mexico), speaking on behalf of the Rio Group, said that the Group recognized the importance of ensuring that the Tribunals were able to carry out their mandates.  It, therefore, welcomed the non-monetary incentives that had been proposed.  It would, however, like to further study the proposals on monetary incentives.

YASUO KISHIMOTO ( Japan) said that the International Civil Service Commission had made it clear that special financial incentives for the Tribunals were not considered appropriate and Japan concurred with that view.  Even if the retention incentive was called an ad hoc measure, it would clearly establish a precedent for other United Nations operations to follow.   Japan did not support any of the proposals made by the Secretary-General or the Advisory Committee regarding the payment of retention incentives.

He added that Japan strongly supported the efforts of the Tribunals to make the most of the existing contractual framework aiming to remove any uncertainty that staff might have with regard to future employment.  Other non-monetary incentives would also be useful in enabling staff to enhance their skills.  The fact that the turnover rate for the Tribunals’ staff had remained low proved that such strategies had been working.

Other Matters

Under other matters, the representative of Slovenia, on behalf of the European Union, sought clarification regarding the postponement of the reports on strengthening the Department of Political Affairs until Monday, saying that the Union had been ready to discuss the item in the first week of the resumed session, but understood that, as requested by some colleagues, the introduction had been delayed until this week.  Now, she wanted to receive an explanation regarding the reasons for a further delay.

Cuba’s representative, speaking on behalf of the Joint Coordinating Committee of the Group of 77 and China and the Non-Aligned Movement, said that the Coordinating Committee had had concerns regarding the political content of the documents, which it had passed on to the Secretariat.  The Secretariat had replied that, instead of a requested corrigendum, an official response would be provided at the time of the consideration of the Secretary-General’s report by the Committee.  Having received that reply the day before the scheduled presentation of the reports on Thursday, the Committee had requested postponement of the introduction until next week.  The reports would be presented, as decided by the Bureau, next Monday, and all delegations would have the possibility to defend their positions.

The Chairman of the Committee, HAMIDON ALI ( Malaysia) confirmed that the reports on strengthening the Department of Political Affairs would be introduced to the Committee on Monday morning, as reflected in the Committee’s programme of work.

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For information media • not an official record
For information media. Not an official record.