62ND UNGA: GUIDANCE REQUEST - FIFTH COMMITTEE'S

UNCLAS USUN NEW YORK 000232

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: AORC UUNR UNGA
SUBJECT: 62ND UNGA: GUIDANCE REQUEST - FIFTH COMMITTEE'S
REVIEW OF CONDITIONS OF SERVICE FOR JUDGES



1. (U) This is an guidance request - see para 12.


2. (U) Summary: The Fifth Committee is soon to consider the
conditions of service and compensation for judges of the ICJ
and other Tribunals i.e. ICTY and ICTR. Though some
technical matters relating to pension schemes, education
benefits and incentives to retain staff will be discussed,
the central issue relates to a decision to bring the system
for determining judges salary in line with the UN Common
System. End summary.


3. (U) In response to the SYG's Report A/C.5/59/2, the
General Assembly in 2005, as a temporary measure, raised the
annual salary of the members of the ICJ and the judges and ad
litem judges of the Tribunals by 6.3 percent from $160,000 to
$170,080, effective January 1, 2005. This figure was
inclusive of post adjustments. General Assembly Resolution
59/282 Section III, also maintained the floor/ceiling
mechanism, established for some duty locations, including The
Hague, in 1987 by the International Civil Service Commission
(ICSC). The floor/ceiling mechanism was intended to address
salary disparities caused by currency fluctuations. Under
the system established in 2005, judges serving in The Hague
receive a net annual remuneration of $217,851, while those
serving in Arusha, who do not have the benefit of the
floor/ceiling mechanism, receive an annual remuneration of
$170,080.


4. (U) Resolution 59/282 also requested a comprehensive
report from the SYG reviewing the conditions of service and
remuneration of the judges of the ICJ and other Tribunals.
In response, the SYG submitted report A/61/554 requesting the
GA approve $170,080 (the current net remuneration) as the
annual base salary for the judges, and additionally the post
adjustment multiplier at 50.2 for The Hague and 38.6 for
Arusha, while eliminating the floor/ceiling mechanism for The
Hague. The SYG's proposal would bring the system for
compensating the judges of the ICJ and other Tribunals back
in line with the rest of the UN Common System. However,
because the SYG's proposal started with the special $170,080
base salary, the annual remuneration for judges in The Hague
would rise some $35,000 to $255,460 and some $65,000 to
$235,731 in Arusha.


5. (U) In its report A/61/612, the Advisory Committee on
Administrative and Budgetary Questions (ACABQ) was critical
of the proposal to utilize the $170,080 as the base salary.
The ACABQ said that using the current net remuneration
($170,080) unduly inflates the remuneration calculated under
the proposed post adjustment system. The ACABQ recommended
that the GA protect the judge's current level of remuneration
and that the SYG present to the GA at its 62nd session a new
proposal for adjusting remuneration for future judges.


6. (U) After extensive discussion, the Fifth Committee
adopted GA Resolution 61/262 phasing out the temporary
compensation regime and aligning the compensation regime
adopted in 2005 for members of the court with the common
system regime for compensating international civil servants,
as proposed by the SYG. However, responding to the ACABQ's
criticism of utilizing the $170,080, Resolution 61/262 set
the annual base salary of the judges of the ICJ and other
Tribunals at $133,500 per annum - rather than $170,080, with
corresponding post-adjustment. In bringing the compensation
regime back in line with the UN Common System, the
post-adjustment system also removed the floor/ceiling
mechanism.


7. (U) Article 32, paragraph 5, of the Statute of the ICJ
states that "salaries, allowances, and compensation (of the
judges) shall be fixed by the General Assembly. They may not
be decreased during the term of office." Consistent with
this provision, the resolution maintained the level of annual
salary approved in 59/282 for current members of the ICJ,
ICTY and ICTR for the duration of their current term of
office, or until such a time as this amount is overtaken by
the application of the revised annual salary system. At the
same time, the GA determined to treat ICTR judges serving in
Arusha comparable to the current judges of the ICJ,
satisfying G-77 concerns and resulting in roughly a $15,000
increase in overall annual compensation for each ICTR judge
effective 1 January 2007.


8. (U) The Fifth Committee approved the text of resolution
61/262 on March 29, 2007. On April 3, 2007, the day before
the resolution was to be adopted by the General Assembly, ICJ
President Rosalyn Higgins wrote to the PGA, requesting that
the "General Assembly postpone the approval of any new
system, subject to submission by the Secretary-General of new
proposals as recommended by the ACABQ." Many delegations
felt President Higgins' letter encroached upon the General
Assembly's authority, both generally under the Charter and


specifically under the Statute of the Court, to set
compensation for the judges. See, para 6. The resolution
was adopted by consensus by the Plenary.


9. (U) President Higgins argued then and continues to argue
that the GA resolution, by lowering the salary of new
incoming judges, violates a general principle of equality,
and should therefore be overturned. There is no requirement
in the Charter or the Statute of the Court for equal
treatment of new judges in regard to such compensation.
Indeed, if there were, it would negate the express authority
of the GA to fix such compensation. Moreover, Article 32(6)
of the Statute of the Court, requiring that new judges take
part in decisions of the ICJ on terms of "complete equality"
with their colleagues, requires equality of status, not
compensation.


10. (SBU) Member States are faced with extraordinary and
unacceptable growth in the UN budget for the 2008-2009
biennium. The current, temporary, base salary for ICJ judges
($170,080) far exceeds the current base salary for an
Under-Secretary-General ($120,429 single/$133,818 dependent).
The U.S. is in the forefront to reduce costs and restrain
increases to the budget. This is one of few examples where
Member States took a step to reduce inflated costs, generated
by the temporary, overly generous system previously in place.
USUN is aware that "certain members" of the ICJ believe
statements made by U.S. representatives in the Fifth
Committee reflect disrespect and hostility for members of the
Court and their work. Such allegations are unfair and appear
to be prompted by the refusal of USUN to defer to the
positions of those judges in the question of compensation.
Notably the position of USUN on this matter was developed in
consultation with the Department. The objections from
"certain members" of the ICJ to the position of USUN on this
issue underscore the dilemma USUN faces in trying to exercise
fiscal discipline. As we understand, there is little support
in the Fifth Committee for overturning the decision of the GA.


11. (U) Department may wish to take into account the
observations and recommendations of the ACABQ as contained in
its report A/62/7/Add.36. ACABQ is critical proposals to
depart from the common system approach for determining
salaries of the judges of the ICJ and other Tribunals and
with the use of a currency other than United States Dollars.
The ACABQ is concerned that these departures from current
practices have implications for other arrangements.


12. (U) Action Request. USUN seeks guidance from the
Department on how to proceed in this matter.
KHALILZAD