Source: http://www.un.org/News/Press/docs/2006/gaab3774.doc.htm http://www.un.org/News/Press/docs/2006/gaab3774.doc.htm
Date: November 17, 2006

17 November 2006
http://www.un.org/News/Press/docs/unlogo_blue_sml_en.jpg \* MERGEFORMATINET
General Assembly
GA/AB/3774 





Department of Public Information • News and Media Division • New York
Sixty-first General Assembly 
Fifth Committee 
22nd & 23rd Meetings (AM, PM & Night)

FIFTH COMMITTEE REQUIRES VOTE TO ADVISE ON IMPLICATIONS
 
OF GENERAL ASSEMBLY DRAFT RESOLUTION
 
Decision Approved 143-5-2;
Also takes up Resources for Commitment Authorities for Timor-Leste Mission

Following extended procedural discussions, numerous questions to the Secretariat and several suspensions of its two meetings today, the Fifth Committee (Administrative and Budgetary) decided to inform the General Assembly that, should it adopt a draft resolution at the conclusion of its emergency session on the question of Palestine this evening, calling for the dispatching of a fact-finding mission, there would be no additional requirements under the Organization’s 2006-2007 budget at the present stage. 

By the terms of a draft decision that was approved by a recorded vote of 143 in favour to 5 against (Australia, Federated States of Micronesia, Israel, Palau, United States), with 2 abstentions (Canada, Kenya) (see annex), any additional resources, as may be necessary, would be reported in the context of the second performance report for the biennium.

The vote was requested by the representatives of the United States and Israel, who said that they could not support the draft resolution before the special session.  They also could not, thus, support the resources to implement that resolution.  Both believed that the draft was one-sided and biased against Israel.

Australia’s representative, explaining his negative vote on the draft decision, said the fact-finding mission that the Assembly would set up by its text would not serve any useful purpose in resolving the conflict in the Middle East.  Therefore, the inquiry should not be funded, even if from existing resources.  He had also voted against an inquiry that had already been set up by the Human Rights Council.  Thus, if he disagreed on the inquiry in the first place, he would certainly object to two such inquiries 

The representatives of Finland (on behalf of the European Union) and Japan regretted that the practice of the Fifth Committee to take decisions by consensus had been deviated from, and South Africa’s representative, speaking on behalf of the “Group of 77” developing countries and China, stressed the importance of the Committee acting as a technical body, and regretted that not all could join it in doing so.  He was not satisfied with the recommendations, but was of the view that, because of the time constraints, it was necessary to move ahead on the issue.

Action on the programme budget implications statement had been held up by a several-hour wait for the report of the Advisory Committee on Administrative and Budgetary Questions (ACABQ), which, in turn, was waiting for responses to its questions from Secretariat officials.  Once the report of the Advisory Committee became available, the United States representative raised several questions to the Chairman of the Advisory Committee, in particular wondering about possible overlap with a recent decision by the Human Rights Council to dispatch a similar fact-finding mission.

“We have waited all day for this, and we need to take action on the matter,” the representative of South Africa said on behalf of the Group of 77, urging quick action on the programme budget implications statement, for which the plenary was waiting.  During the wait for the ACABQ report presentation, he also said that ACABQ seemed to be resorting to a deliberate trick “to run the clock”, so that the special session would expire and the issue become moot.  He expressed regret that the Advisory Committee was becoming politicized, saying that, as a technical body, it should deal with the task at hand in a technical way.

Also today, the Committee took up the Secretary-General’s request for commitment authority with assessment in the amount of $172.53 million, inclusive of about $50 million previously authorized by ACABQ, to finance the start-up requirements of the United Nations Integrated Mission in Timor-Leste (UNMIT).  Following the establishment of the follow-up Mission on 25 August, the request had been presented to the Assembly, pending submission of the Mission’s full budget during the first part of its resumed session next spring.

The speakers noted that the Mission had been asked to play a key role in promoting peace and reconciliation in Timor-Leste, strengthening key governing institutions, and preparing for presidential and parliamentary elections in 2007. However, several delegates also echoed the Advisory Committee’s concern over recent excessive use of commitment authority with assessment, which constituted a departure from proper budget practice and discipline.  The Advisory Committee wrote, in that regard, that, as the United Nations had been in Timor-Leste for over seven years and was thoroughly familiar with the situation there, the Secretary-General should have been in a position to present a full budget in a more timely fashion.

Responding to queries from the floor, United Nations Controller, Warren Sach, while sharing the opinion that peacekeeping budgets needed to be fully justified, emphasized the Secretariat’s heavy workload in connection with “a whole series” of budget requirements presented in recent months.  Under the circumstances, the Secretariat could perhaps have made an effort to produce a budget, but it would not have been a good one. He also asked the Committee to take a close look at the Advisory Committee’s recommendation to assess, at this stage, only 50 per cent of the amount approved for commitment through 31 March 2007, because that could affect the cash flow of the Mission and lead to problems in the implementation of its mandate.

Speakers also disagreed about the request for additional human resources at Headquarters to provide backstopping for UNMIT, with several delegates supporting the view of the Advisory Committee that those should be funded from the Support Account and others questioning those comments.  Seeking clarification on the reasons for recommending against the consideration of backstopping posts for UNMIT, Brazil’s representative said that the resources assigned to the Support Account were based on the realities of February 2006 and that many events, including in the Middle East, had taken place since then.  However, Japan’s representative insisted that issues related to Headquarters backstopping should be discussed thoroughly in the context of the Support Account.  He supported the recommendation of the Advisory Committee to make use of vacant positions and existing general temporary assistance funding to meet the surge need at Headquarters for the Mission.

And finally, today, Nicolas Michel, Under-Secretary-General for Legal Affairs, presented his comments and observations concerning waivers of immunity by the Secretary-General, in response to a request for information by the Russian Federation earlier in the session.  He said that the Secretary-General had sole, pivotal and discretionary authority and responsibility to waive the immunity of any official in any case, and to decide whether immunity impeded the course of justice and could be waived without prejudice to the interests of the United Nations.  He also had no legally binding obligation to consult any authority in waiving immunity.

Also taking the floor today were representatives of Indonesia, Argentina, Nigeria (on behalf of the African Group), Angola, Russian Federation and Syria.

The Committee will continue its work at a date to be announced.

Background

The Fifth Committee (Administrative and Budgetary) met this morning to take up the financing of the United Nations Integrated Mission in Timor-Leste (UNMIT).

The Secretary-General’s report on financing of UNMIT (document A/61/519) contains a request for commitment authority, with assessment, in the amount of about $172.53 million for the period from 25 August 2006 to 31 March 2007, inclusive of the amount of about $50 million previously authorized by the Advisory Committee on Administrative and Budgetary Questions (ACABQ) to meet the Mission’s start-up requirements.  The request is being provided to the Assembly, pending submission of a full budget for the Mission during the first part of its resumed session next spring.

Following the establishment of this follow-up mission on 25 August, the commitment authority provides for deployment of 34 military liaison and staff officers, 1,608 police personnel, 480 international staff, 1,075 national staff and 380 United Nations Volunteers, as well as requirements for 22 general temporary assistance positions requested in supporting the Mission at Headquarters.

ACABQ, in a related report (document A/61/567), confirms that the full budget of the Mission will not be available before mid-February 2007.  Aware that, in recent years, the Assembly has approved commitment authority with assessment in connection with several other missions’ financing, the Advisory Committee points out that this represents a departure from good budget practice and discipline.  Commitment authority, by its nature, should constitute a short-term funding bridge, pending the timely submission of fully detailed and justified budgets.

ACABQ advocates stricter adherence to proper budget procedure, whereby assessments are decided on the basis of a duly approved appropriation by the Assembly after the consideration of a complete and fully justified budget submission.  That is particularly relevant in the case of UNMIT.  As the United Nations has been in Timor-Leste for over seven years and is thoroughly familiar with the situation and local conditions, the Secretary-General should have been in a position to present a full budget in a more timely fashion.  Moreover, given that almost eight months of the Mission’s mandate will have been completed before the budget can be approved, the basic structure and resource requirements will have been established de facto, without specific approval by the Assembly.

ACABQ requests that the structure and staffing levels of the Mission, including the number and grade level of posts, particularly those at high levels, be carefully studied and justified in the budget submission.  The request for additional human resources at Headquarters should take into account the existing capacity of the Support Account, which now has a number of vacancies and unutilized general temporary assistance resources.  The Advisory Committee, therefore, recommends against the consideration of backstopping posts in the context of requirements for UNMIT.  Further, it recommends approval of seven temporary assistance positions proposed only to integrate the Conduct and Discipline Team.

On the whole, the Advisory Committee recommends that the Assembly authorize the Secretary-General to enter into commitments for the establishment and maintenance of the Mission for the period ending on 31 March 2007 in the amount of some $170.22 million, inclusive of the almost $50 million that was previously authorized.  It further recommends the assessment, at this stage, of 50 per cent of the amount approved for commitment for the periods from 25 August 2006 to 25 February 2007 and from 26 February to 31 March 2007, subject to the decision of the Security Council to extend the mandate of the Mission beyond 25 February 2007.  The Secretary-General could request a further assessment, should the need arise.

Statements

WARREN SACH, United Nations Controller, addressed the Committee on the financing of UNMIT and said that the full budget request would be presented during the first resumed session of the General Assembly next year.  Because of the nature of the establishment of UNMIT, 22 temporary assistance positions were requested to backstop the Mission at Headquarters.

RAJAT SAHA, Chairman of ACABQ, noted that Committee had no choice but to recommend the use of commitment authority with assessment for UNMIT, but added that the mechanism was being overused.  He advocated a return to stricter adherence to proper budget procedure, with assessments decided on the basis of duly approved appropriations by the General Assembly after consideration of complete and fully justified budget submissions, with any future recourse to the current mechanism confined to the limited use for which it was envisaged.  The Committee recommended against the proposal to charge 22 general temporary positions to the Mission’s budget with the purpose of backstopping the Mission at Headquarters.

EDWINA STEVENS (Australia), also speaking on behalf of Canada and New Zealand (CANZ), said CANZ strongly supported the United Nations role in Timor-Leste and viewed Security Council resolution 1704 (2006) establishing UNMIT as the result of careful consideration.  The Mission’s mandate had evolved through extensive consultations between the Timorese and international stakeholders, spanning across the Security Council, the Core Group of Member States and the high-level, multi-disciplinary team.  UNMIT’s mandate highlighted not just the unique complexity of the situation in Timor-Leste, but illustrated the changing and multifaceted nature of United Nations peace operations today.  Indeed, the Mission had been asked to play a key role in promoting peace and reconciliation, strengthen key governing institutions, and to prepare for presidential and parliamentary elections next year.

The delegations she represented took on board the ACABQ comments regarding the presentation of the financing request, and encouraged the Secretariat to do likewise, she continued.  Everybody was aware, however, that the Secretariat had faced a heavy workload in peacekeeping since mid-2006.  She looked forward to the presentation of the Mission’s budget, in accordance with the results-based budgeting framework, at the fist resumed session next year.  With regard to the Advisory Committee’s recommendations on the reduced commitment authority and assessment level, she asked for the Secretariat’s interpretation of those measures and practical assessment of their operational impact.

She also noted the request for additional short-term capacity at Headquarters to help support UNMIT.  Like ACABQ, she believed the Support Account was the appropriate funding source for Headquarters backstopping.  If surge requirements demanded extra help, the Secretary-General should set that out comprehensively, so that any necessary revisions to Support Account estimates could be considered.  Notwithstanding, she recognized there had been many new tasks added to the Secretariat’s agenda since the Support Account had been negotiated in mid-2006, and she would like to know if the Secretariat thought the ACABQ recommendation for the use of Support Account vacancies and resources was feasible.

ADE PETRANTO ( Indonesia) supported the mandate of UNMIT to create peace, stability, good governance and the future development of Timor-Leste.  He recognized the importance of the Integrated Mission, particularly in light of the events of last April and May and the challenges ahead.  Indonesia was particularly pleased with the multidimensional approach that had been adopted, which should benefit greatly from the involvement of many stakeholders in its implementation.  An indication of their commitment, however, should be the level of funding they were prepared to provide for the Mission.  In a few cases, the record pointed to an expected decline in the funding from some United Nations funds and programmes in 2007.  Perhaps steps could be taken to reverse that trend, in order to guarantee the success of the Mission.

According to estimates, UNMIT should have access to some $172.5 million to meet its immediate requirements, he continued.  On the other hand, ACABQ, concerned at the way the budget was handled, had decided to approve $170.2 million and chosen to recommend against backstopping posts at Headquarters for UNMIT.  In addressing the Mission’s budget, the point must be made that the proper budget had not yet been prepared.  The cost estimates had been presented under the facility of the commitment authority, which was an interim funding bridge mechanism to allow essential start-up activities for the Mission.  To treat those estimates as a budget would, therefore, give validity to the use of commitment authority as a legitimate instrument to short-circuit the process to create a budget.  It was not intended to be used as a substitute for a complete budget submission.  That practice should not become standard, especially as more than ample time had been provided to prepare the submission.

He insisted that it was necessary to return to strict adherence to budget submission procedure where the Assembly could consider a complete and fully justified budget submission.  He looked forward to considering the budget submission in the near future.  In the meantime, Indonesia would appreciate receiving information on the adjustments to the Mission’s structure that might have been proposed by the Secretary-General, and their likely impact on the budget.   Indonesia expected that the funding to operationalize UNMIT would be spent wisely, so that various goals of its mandate could be met in a timely fashion.

From resolution 1704 it was clear that one of the priorities was preparation for the 2007 elections, including provision of objective and accurate information to the people of Timor-Leste on those elections, he said.  However, the commitment authority estimates did not include any provision for electoral activities.  The emphasis was also placed on capacity-building.  The mandate of the Mission took due note of the need for Timor-Leste to achieve self-reliance and self-sufficiency.  Even in the best of circumstances, however, those goals were never within easy reach of new nations.  That meant that, in the foreseeable future, Timor-Leste would depend on external assistance.  Another important dimension of capacity-building related to Timor-Leste’s ability to promote peace and stability.  Indonesia believed that several problems had to be addressed, including national reconciliation among the leaders and the development of economic strength, as a result of well-developed human resources.  In line with those goals, attention must be paid to the issue of women and children and mainstreaming gender perspectives throughout the Mission’s policies.

On the decision to utilize consultants, he was interested in the intended roles and responsibilities of the consultants.  Of equal importance must be the transparency of their selection and the range of their expertise, as well as justification of such expertise.  It was important for Timor-Leste to take ownership of its future and, to that end, the maximum involvement of its people in all the programmes and activities of UNMIT.

DAVID TRAYSTMAN ( United States) extended condolences to the families of the two Jordanian solders who had been fatally injured last Friday while serving with the United Nations Stabilization Mission in Haiti (MINUSTAH).  

He quoted United States Ambassador John Bolton, who had recently said that the surge of peacekeeping operations had strained the Organization and required stronger management, more efficient and effective implementation of mandates, and greater accountability.  He pledged vigilance in closely scrutinizing the current proposals before the Committee, to ensure that the human and financial resources would exist to meet current and future challenges.  He asked the Secretariat to take extra care to ensure that requests for resources were fully justified.  He expressed regret that the request for UNMIT was not supported by the level of detail that would have been received in a full budget submission.  Apparently, the Mission’s full 2006-2007 budget would only be considered eight months after it had already been in operation, and the Committee would then take up the 2007-2008 request only two months later.

Because the United Nations had been actively engaged in Timor-Leste since 1999, he expected that the Secretariat would have been in a position to present a full budget at this stage.  He said that there should not be a reversal of the transfer of responsibility for various areas of support from the United Nations Office in Timor-Leste (UNOTIL) to various United Nations agencies, funds and programmes and other development partners.  It would have been useful to receive information on country-team coordination, specifically which functions had been transferred away from UNOTIL, and what steps were being taken to ensure that duplication of activities between UNMIT and country-team partners was minimized.  He fully supported the ACABQ’s call for clear identification within the full budget submission of the support to be provided by the country team and bilateral and multilateral partners to UNMIT, and said that budget discipline should be applied.

He questioned the need for 22 general temporary assistance positions for backstopping UNMIT at United Nations Headquarters, and supported the ACABQ’s opinion that the request for those positions should take into account the existing capacity of the Support Account created to provide backstopping at Headquarters.  He did not agree that such funding should be included in the Mission’s budget at this time and, if the need for additional funding was required, it should be absorbed within the current Support Account budget.  If it could not be absorbed, a revised Support Account budget should be presented.  He encouraged development of an institutionalized process for dealing with the needs of starting up new missions on an interim and longer-term basis.

FERNANDO DE OLIVEIRA SENA ( Brazil) fully supported UNMIT, especially due to Brazil and Timor-Leste’s shared language and similar background and history.  He called for the full budget of UNMIT to be submitted to the General Assembly in the beginning of 2007, and called for the United Nations to support Timor-Leste’s Government in enhancing stability, consolidating a culture of democratic governance and facilitating political dialogue among Timorese stakeholders.

He added that assurance was needed that the full budget allowed the Mission to support Timor-Leste in all aspects of the 2007 presidential and parliamentary electoral process.  He favoured a budget that enabled the Mission to effectively support the national Armed Forces; restoration of public security and strengthening the National Police (PNLT) and the Ministry of Interior; promotion of human rights, justice and reconciliation, and the completion of investigations into outstanding serious human rights violations in 1999; capacity-building and development; promotion of gender equality; cooperation and coordination with United Nations agencies, funds and programmes and other relevant partners in post-conflict peacebuilding; provision of objective and accurate information to the Timorese people, particularly on the forthcoming 2007 elections; and the security, freedom of movement and protection of United Nations and associated personnel. 

He underscored the need for immediate cash, human and operational resources to support the establishment and deployment of the Mission and, therefore, supported the Secretary-General in his request for commitment authority with assessment for the period 25 August 2006 to 31 March 2007 in the amount of $172.53 million, inclusive of the amount of $49.96 million previously authorized by ACABQ to meet the cost of immediate and essential start-up requirements of the Mission.  He also supported the establishment of a special account for UNMIT for the purpose of accounting for income received and expenditure incurred in respect of the Mission.  He sought clarification on the impact for UNMIT of the reductions proposed by ACABQ, particularly the reasons for recommending against consideration of backstopping posts for UNMIT.  He said the resources assigned to the Support Account were based on the realities of February 2006 and that many events, including in the Middle East, had taken place since then.  Also, he wanted to know the impact of approving 50 per cent of the commitment amount for the periods from 25 August 2006 to 25 February 2007 and from 26 February to 25 February 2007.

HITOSHI KOZAKI ( Japan) said that his delegation had repeatedly stated that all resource requirements needed to be fully justified.  The Assembly was expected to play an oversight role vis-à-vis the Secretariat through close scrutiny of proposals from the Secretariat.  He regretted that the Assembly had no choice but to take action based on the current request for resources.  He fully shared the concern of ACABQ about the excessive use of commitment authority with assessment in the recent past, which constituted a departure from proper budget practice and discipline.  Issues related to Headquarters backstopping should be discussed thoroughly in the context of the Support Account, not in the context of the proposed commitment authority with assessment for UNMIT.  He supported the recommendation of the Advisory Committee to make use of vacant positions and existing general temporary assistance funding to meet the surge need at Headquarters for the Mission.

His delegation had found no clear justification with regard to the Mission structure, and number and level of civilian staff, especially at the senior management level, he said, fully concurring with ACABQ that approval of commitment authority at this point did in no way imply approval of the structure of resource level of the Mission, nor did it prejudge future consideration of the budget for UNMIT.  He was not convinced about the need to budget $250,000 for quick-impact projects, given the presence of United Nations entities engaged in humanitarian and development issues in the field, as explained in annex II of the report of the Advisory Committee.  He supported ACABQ’s approach to make adjustments to the level of assessment.  He also supported, in principle, the level of assessment recommended by the Advisory Committee.

ALEJANDRO TORRES LEPORI ( Argentina) fully supported UNMIT and the statement made by Brazil.  He supported the commitment authority to finance the first phase of the Mission, and called UNMIT a sad reminder of what happened when the United Nations withdrew too soon from the field.  Valuable lessons could be learned from Timor-Leste for many missions currently under way, he added.  He also supported the necessary resources to carry out rapid deployment projects in the field, which were useful to improve the daily quality of life of the local population.

NONYE UDO ( Nigeria), speaking on behalf of the African Group, said that every mission was unique and had to be tailored to accomplish its mandate.  She noted that UNMIT’s full budget would be presented early next year, and trusted that it would be offered in a results-based framework and with Member States’ concerns in mind.  She noted the requests for clarification made by Brazil and called them pertinent.

ELSA CRISTINA DE JESUS PATACA ( Angola) associated herself with the statements made by Brazil and Nigeria, and sought to hear from ACABQ on the reduction of the budget.

Responding to questions, Mr. SACH said that he had heard Member States who had indicated discomfort with the frequency of the use of commitment authority.  He felt it was regrettable to not be in a position to fully justify resources at an early stage, but it was a matter of practical reality and the pace of activity of the Security Council.  He might have been in position to agree that there had been ample time to prepare the budget but, in the past months, a whole series of budget requirements had been presented, including those for reforming the United Nations Interim Force in Lebanon (UNIFIL), as well as missions in the Sudan, Burundi and revised estimates for several missions.  All that was above and beyond the normal workload of the Secretariat.  Perhaps the Secretariat could have made an effort to produce a budget, but it would not have been a good one.  Thus, while sharing the concerns that budgets needed to be fully justified, he believed it was not within reasonable bounds of expectation to have, at this stage, commitment authority items be substituted with budgets.  Missions needed to go on.

Continuing, he said that it did not make a lot of sense for him to see a recommendation for assessment at half the level of the commitment authority.  “We need to spend the money,” he insisted.  Two weeks ago, he had presented the financial situation of the United Nations to the Committee, which had indicated that it was not good with regard to peacekeeping.  Thus, the recommendation for reduced assessment would exacerbate the cash flow situation and would lead to problems in the implementation of the Mission’s mandate.  The flexibility in budget management and cash flow management was particularly low in the case of UNMIT.  The real chances of receiving the funds by February were low.  For those reasons, he recommended that Member States take a close look at that recommendation of ACABQ.

NICOLAS MICHEL, United Nations Legal Counsel, presented comments and observations concerning waivers of immunity by the Secretary-General.  He said the questions posed on the issue had been discussed in detail, with the participation of the Office of Legal Affairs, in informal consultations of the Fifth Committee held on 11, 12 and 20 October and on 2 November.  He was replying to the request for information because he was invited to do so by the Bureau of the Fifth Committee, noting that the Legal Counsel would provide written answers to questions posed only by the deliberative organs of the Organization, and not by individual Member States.  He said requests for waiver of immunity were addressed by the Secretary-General and the Legal Counsel on a case-by-case basis with the utmost seriousness.

He said that the basic documents regulating the scope of the privileges and immunities of officials of the Organization were Article 105 of the Charter of the United Nations, articles V and VII of the 1946 Convention on the Privileges and Immunities of the United Nations, Headquarters agreements with host States and, where applicable, the 1961 Vienna Convention on Diplomatic Relations.  The Secretary-General had sole, pivotal and discretionary authority and responsibility to waive the immunity of any official in any case, and to decide whether immunity impeded the course of justice and could be waived without prejudice to the interests of the United Nations.  He also had no legally binding obligation to consult any authority in waiving immunity, which had been confirmed in an International Court of Justice advisory opinion of 1999, “the Cumaraswamy case”.

The General Assembly, under resolution 56/280, had adopted Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials and Experts on Mission.  He said the last sentence of Regulation 1(e) could not be interpreted to limit or expand the discretionary authority of the Secretary-General to mean that he “must” inform or “shall” take into account the views of the legislative bodies concerned in considering those matters.  He explained that such an interpretation was at variance with the obligations of States parties and the rights, duties and responsibilities of the Secretary-General under the 1946 Convention, as well as the letter and spirit of the 1969 Vienna Convention on the Law of Treaties, which required good faith in performance of the binding obligations of treaties.  He added that the nature of the investigation made it appear inconceivable, impracticable and legally questionable to expect the Secretary-General to inform the legislative bodies concerned of a request to waive, and of his decision to do so at the preliminary stage of a criminal investigation, as it involved the criminal law and procedures of a Member State usually handled on a strictly confidential basis.

In the case of the former Joint Inspection Unit (JIU) inspector, he reiterated that the decision to waive immunity had been made by the Secretary-General on 7 November 2005 following a request by Swiss authorities over grave allegations of a criminal nature, which were under intensive investigation and communicated on a confidential basis.  On 3 March 2006, the Legal Counsel had addressed a confidential communication to the President of JIU requesting transmittal, to the JIU inspector concerned, of a confidential letter explaining the Secretary-General’s reasoning for why the decision to waive immunity had not been brought to the attention of the General Assembly.  No reaction had been received by Office of Legal Affairs.

Regarding the former Chairman of ACABQ, Vladimir Kuznetsov, he reiterated that the decision to waive immunity had been made by the Secretary-General on 1 September 2005, following a request of the United States Mission to the Untied Nations based on serious United States federal criminal charges against Mr. Kuznetsov relating to money-laundering in violation of United States law.  A letter had been addressed to General Assembly President Jean Ping on 9 September 2005 informing him of the United States request and the reasons for the waiver, and that assistance had been requested with a view to facilitating a visit by a United Nations representative to Mr. Kuznetsov, to which no reaction was received.  He was unaware of any instances of transfer to competent United States authorities of any information or materials relating to Mr. Kuznetsov prior to the waiver of immunity.

The Administrative Instruction SI/AI/299 on “Reporting of arrest and detention of staff members, other agents of the United Nations and members of their families” and its annex presents the rights of the Organization relating to arrest or detention of United Nations staff members.  The annex confirmed that it was exclusively for the Secretary-General to determine the extent of the duties and functions of United Nations officials and of experts on missions for the United Nations, as well as the entitlement of the United Nations to provide or retain an attorney in so far as an interest of the Untied Nations was affected, including to assist the arrested or detained individual in retaining an attorney of his own.

He noted that, immediately following the arrest of Mr. Kuznetsov on 1 September 2005, the Office of Legal Affairs had addressed a request on 2 September to the United States Mission to facilitate a visit to Mr. Kuznetsov at his place of detention.  The Assistant Secretary-General for Human Resources visited Mr. Kuznetsov twice, on 8 September and 17 November, and no request for retaining an attorney was received from Mr. Kuznetsov.  He added that bilateral contacts on the matter had occurred between the Legal Counsel and representatives of the Mission of the Russian Federation in the fall of 2005 and on 17 October 2006.

He concluded by noting that, on many occasions, the Secretary-General made conclusive determinations that such waivers of immunity were not in the interests of the United Nations.

ANDREI KOVALENKO ( Russian Federation) thanked the Legal Counsel for the responses provided.  His delegation would study the information submitted, and reserved the right to ask additional questions in the future. 

NAJIB ELJI ( Syria) also thanked Mr. Michel and said that he appreciated the opinions expressed today.  However, for other cases, opinions of the Office of Legal Affairs were not binding in nature, since it was an advisory body.  The rules of procedure stipulated that a legal opinion should be expressed either orally or in writing, and he hoped the Office would respond to all requests for information in the future.  As for the substance of the matter, he wanted to explore the responses and reserved the right to make future interventions on it.

ANDREW S. HILLMAN ( United States) joined others who had expressed their appreciation for the thorough and detailed responses provided by the Under-Secretary-General.  The question of immunity of the Joint Inspection Unit member was, indeed, a legitimate issue to be brought to the attention of Office of Legal Affairs, since the matter was before the Committee.  However, the issue related to the waiver of immunity of the former Chair of ACABQ was not a matter currently before the Committee.  Since the matter was now being addressed in criminal proceedings, he urged caution on the matter, as the open nature of the meeting could prejudice the outcome of the proceedings.

Programme Budget Implications of Assembly Draft

The Committee then turned to a statement of programme budget implications of draft resolution A/ES-10/L.19 on illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory (document A/C.5/61/12), according to which the estimated costs of the fact-finding mission, as requested in operative paragraph 3 of the draft, would amount to $131,200.

Reporting to the Committee on the status of the ACABQ report on the matter, Mr. SAHA said that the Advisory Committee had begun its consideration of the matter this morning, posing a number of questions to the Secretariat.  While it had received some of the answers, the Secretariat was now preparing some additional information for ACABQ.  In the meantime, the Advisory Committee had not suspended its meeting and, as soon as the required information was compiled, it would resume its consideration on the matter. 

KAREN LOCK (South Africa), speaking on behalf of the “Group of 77” developing countries and China, was very concerned that the Committee had been unable to act on the statement of programme budget implications that would soon be introduced.  She asked for a clarification on the timelines, which would also have an impact on the work of the plenary.  She asked if ACABQ would continue its work through lunchtime and wanted to know when the response would be submitted to the Fifth.

Mr. SAHA assured the Committee that the Advisory Committee would definitely look at the additional information, for which it was still waiting.  Upon receipt of the information they were waiting for, members of the Advisory Committee needed time to read the document and express their opinion on it.  Thus, he found it difficult to provide the time line.

Ms. LOCK said that it was not the intention of the Fifth Committee to get involved in the internal workings of ACABQ.  However, the General Assembly needed that response urgently, and she wanted assurances that ACABQ would be able to rise to the expectations.  The Group believed that the Committee was being placed in a difficult position, as it needed to take action by 3 p.m. to allow the plenary to take action on the draft before it.

However, she added, it was not the first time the Committee was asked to provide a statement of programme budget implications in a very short time.  On previous occasions, on a request from Member States, certain such statements of programme budget implications had been acted on quickly, some of them as oral decisions.  She hoped that, in this case, the Committee would be able to act in the same way.  The Committee had a report on the budget implications statement before it.  If ACABQ was unable able to provide its report, the Chairman of the Advisory Committee should inform the Fifth Committee of that situation and then it was up to the Assembly to decide on how to proceed. 

KATJA PEHRMAN ( Finland), speaking on behalf of the European Union, stressed that it was normal practice for the Committee to have an ACABQ report before action was taken.  The practice should be respected in this case, as well.

MARK WALLACE ( United States) underscored the importance of relying on opinions of the experts from ACABQ.  It would be inappropriate to put pressure on the Advisory Committee before it could vet the subject carefully.

Mr. SAHA noted the concern expressed and comments made, and assured the delegates that they would be brought to the attention of the members of ACABQ.

Ms. LOCK ( South Africa) said that she appreciated the positive response and, as always, assured ACABQ of the full support of the Group of 77, which respected the guidance from the Advisory Committee.  The practice of the Committee should be respected -– and the practice was that, if the Assembly asked for the Advisory Committee’s guidance, it responded accordingly.  She stood ready to do what was needed to ensure action in the plenary today.

The Committee then adjourned the meeting, deciding to resume its work at 3 p.m.

At the opening of the afternoon session, the Committee was informed that no communication had been received from ACABQ on the status of its work.

Ms. LOCK (South Africa), speaking on behalf of the Group of 77, reiterated her concern regarding the time constraints faced by the Committee, as 3 p.m. had been set as the deadline for the Fifth Committee to provide its opinion on the matter.

The Secretary of the Committee said that the matter was in the hands of Member States.  A representative of the General Assembly and Economic and Social Council Affairs Division confirmed that the plenary had 10 more speakers for the afternoon, and it was scheduled to begin its session at 4 p.m.  Responding to another query from South Africa, the Secretary said that, depending on the decision of the Committee, at least 15 to 20 minutes would be needed for the preparation of a provisional Fifth Committee report.

Ms. LOCK reiterated that the Committee had a very tight time line and she wanted the urgency of the matter to be brought to the attention of the ACABQ.

( Canada) said that she had missed what the exact deadline before the Committee was and asked if ACABQ had been afforded the time to give the matter a thorough review.

Ms. LOCK said that she was surprised that questions were being asked about the urgency of the matter.  Purely based on the technical matter within the purview of the Fifth Committee, it had to consider a statement on programme budget implications so that the plenary could take action on the resolution before it at the end of the Assembly’s special session today.  The Committee had a responsibility, like with many other urgent budget statements, to respond to the Assembly’s request and conclude its consideration of the matter as quickly as possible.

The meeting was then suspended for 15 minutes.

Mr. SAHA, the Chairman of ACABQ, noted that he had suspended the meeting of the Advisory Committee to present a status report.  He said that, in the morning session, the Advisory Committee had asked for additional information on a variety of issues: the status of expenditures for the Department of Political Affairs; cost estimates; information on the Human Rights Council’s resolution on a fact-finding mission; the membership of the proposed fact-finding mission; and information on other entities in the region that could contribute to the mission by sharing assets. 

The Department of Political Affairs expenditure information had been given.  As for Department of Political Affairs staff travel, it had already overspent by $25.5 million, so there was no question of absorbing the cost of the mission from within the existing budget.  Additionally, it was not safe to assume that one third of the Department of Political Affairs’ budget was available for that purpose, as its obligation monies had not been acquired.  Cost estimates had been provided.  A copy of the resolution passed by the Human Rights Council had not yet been supplied, although ACABQ had been given a copy of a letter from the President of the Human Rights Council to the President of the General Assembly.  A list of other entities in the region had been supplied, but sufficient information was not available on resources.  Additionally, the Advisory Committee had discovered a defect in the request, as the programme budget implications statement for the mission had proposed covering four locations, while the detailed expenditures said five.  That needed to be clarified, because the draft resolution referred to four locations.

He said the Advisory Committee was in an advanced stage of consideration of the proposal, but emphasized that, because ACABQ was a technical committee, it considered it a priority to get the technical details correct.  He insisted on that in all instances, and not only the current one.  ACABQ was awaiting more information from a representative of the Secretary-General.

Ms. LOCK ( South Africa) said it was rather unusual for the Committee to have such an in-depth discussion of the activities inside ACABQ, but it showed the urgency of the matter.  She was now struck that the Committee had so little time to receive the information of ACABQ before the deadlines it faced with the pending conclusion of the plenary of the General Assembly’s special session, especially bearing in mind the fact that ACABQ must come to a considered opinion based on consensus.  She fully supported ACABQ, but found it difficult to understand why so much scrutiny was being given to the current issue dealing with only $130,000, when other much larger amounts had been dealt with in very short time frames.  She wanted to know if there was any possibility that ACABQ could reach a consensus in time.

Mr. SAHA, the Chairman of ACABQ, then placed on the record two statements.  First, he said ACABQ had repeatedly asked for progressive expenditure statements and obligations to get a clear opinion of the availability or non-availability of funds.  If they detected a discrepancy in four or five locations, it altered the budgetary allocation.  He also wanted to place on record his assurance to the General Assembly of the Advisory Committee’s mindfulness of the urgency of the matter.  But, unlike the Fifth Committee or the General Assembly, the Advisory Committee had to have consensus in all cases.  He then added that, unless an oral statement could be given in one language, it would add difficulty to the time problem.

Ms. LOCK then assured the Chairman that she had no objection to an oral report, and was happy to receive any report at the current stage.  She said the Committee found itself at the end of a road, and was looking to ACABQ to do its task, or the Committee would need to take action in accordance with rule 153 of the rules of procedure.

The meeting was then again suspended.

When the Committee resumed, the Chairman of the Fifth Committee, YOUCEF YOUSFI ( Algeria) suggested that, since no information had been received from ACABQ, the Fifth Committee should request the Chairman of the Advisory Committee to report on the progress to the Committee.

DUMISANI KUMALO ( South Africa) said that ACABQ seemed to be resorting to a deliberate trick “to run the clock”, so that the special session expired and the issue became moot.  It was very unfortunate that ACABQ was becoming politicized.  As a technical body, it should deal with the task at hand in a technical way.  He also requested the Chairman to ask the President of the General Assembly, in light of the delay in the Fifth Committee, to also delay the proceedings in the plenary.
The Secretary of the Committee informed the delegates that ACABQ had concluded its consideration of the matter and was now considering its report to the Fifth Committee.

The meeting was then again suspended.

Action on text

The Chairman informed the Committee that the General Assembly was considering resolution A/ES-10/L.19:  Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.

SHARON VAN BUEHRLE, Director of the Programme Planning and Budget Division, introduced a statement of programme budget implication on the resolution, stating that the estimated costs of the fact-finding mission on the attack in Beit Hanoun, as requested in operative paragraph 3 of the draft resolution, would amount to $131,200.

Mr. SAHA, the Chairman of ACABQ, next orally introduced the report of the Advisory Committee, noting that a consensus text had been achieved, and that he appreciated the understanding of the Fifth Committee.  The Advisory Committee was of the opinion that, taking into account the possibility of obtaining assistance from other United Nations entities in the area where feasible, the requirements related to the draft resolution should be absorbed to the extent possible and reflected in the performance report on the programme budget for 2006-2007.

As the Secretary of the Committee started reading an oral draft decision proposed by the Chairman on the matter, the United States representative sought an actual text of the draft decision, and requested that action should not be taken until that was circulated.

South Africa’s representative next said there was a great time constraint, and it was the practice of the Committee to act on oral decisions, and requested a read out of the decision.

The United States representative responded that he was only asking a few minutes to read the draft, and noted that his colleagues had earlier requested that the Committee should not be bound by artificial time constraints.

The meeting was again suspended to allow the draft to be circulated.

Upon resumption of the meeting, the Chairman of the Committee next introduced an oral draft decision, by the terms of which the Committee decided to inform the General Assembly that, should the General Assembly adopt draft resolution A/ES-10/L.19, it would not give rise to any additional requirements under section 3, Political Affairs, for the programme budget for the biennium 2006-2007, at the present stage, and also that any additional resources, as may be necessary, will be reported in the context of the second performance report.

The United States representative asked what the overlap was with the fact-finding mission between this resolution and the Human Rights Council.

VLADIMIR GORYAYEV, Deputy Director of the Asia and Pacific Division of the Department of Political Affairs, explained that the action of the Human Rights Council provided for the dispatch of a fact-finding mission with the objectives of the Human Rights Council’s resolution, and sought to assess the situation of victims, to address the needs of survivors and make recommendations on ways and means to protect Palestinian civilians against any further Israeli assaults.  With regard to the terms of reference of the fact-finding mission discussed in the draft General Assembly resolution, the Secretariat’s fact-finding mission, if and when adopted by the General Assembly, would look at all circumstances related to that particular tragic incident, which had taken place on 8 November.

The United States representative next asked to what extent other resources in the area would be drawn upon if the action was adopted.

Ms. VAN BUEHRLE said that, in all operations where it was practical to draw on activities on the ground and in the vicinity, it was the practice of the Secretariat to do so, and the same modality would be applied.

The United States representative next pointed to ACABQ’s language, and said that he was unaware of the meaning of the language on absorbing requirements “to the extent possible” and sought to know the implications of it.

South Africa’s representative next requested clarification to know if the Secretariat would be able to implement the Assembly’s draft resolution unhindered based on ACABQ’s language.  To facilitate work, she called on all delegations to ask their questions to meet the request of the Assembly.

Mr. SAHA next said that the programme budget implications statement had been adopted in less than 24 hours, and they did not have the wherewithal to communicate with all entities in the area.  He added that the list of United Nations entities had been provided by the Secretariat.

Ms. VAN BUEHRLE then added that the Secretariat should use the appropriation approved and, where not fully feasible, the Secretariat had been given authority to report back in the second performance report, which was usually approved of by the Committee.

The representative of Australia next said it was strange that the United Nations would send two missions to do the same thing, especially because of the Fifth Committee’s concern with issues of finance.  He wanted to know if the Human Rights Council’s budget would come back here and go through ACABQ, and questioned if that would be a factor in those budgetary considerations.

South Africa’s representative next said he respected the right of delegations to ask questions, but said the budget statement was now being caught up in political, rather than financial issues.  He said that the Committee could not speculate on why the Human Rights Council did what it did, but a draft decision was before the Committee, and he called on the Chairman to rule on the matter.

Mr. GORYAYEV next said he had to admit the subject was the same, and these were both fact-finding missions into the same tragic incident, with one element of difference being the clear parameters of the Human Rights Council’s mission.  But, the United Nations fact-finding mission’s terms of reference were not yet defined and the draft resolution did not contain substantive elements, so it was difficult to say if there would be absolute overlap or not.  He added that the fact-finding mission of the Human Rights Council would be composed of eminent personalities, and the United Nations mission would be carried out at more of a working-level.

The representative of Finland, on behalf of the European Union, said that it was very important for all the answers to be provided.  In accordance with practice, the Fifth Committee was going to take decision on the basis of ACABQ report. The Union would be able to proceed on the basis of the draft before the Committee.

The United States representative said that the Secretariat had specified that the missions would be exactly the same.  If that was the case, how then would the costs be determined?

Mr. SAHA said that the Advisory Committee did not have the budgetary implications of the decision taken by the Human Rights Council.

Ms. VAN-BUERLE clarified that both fact-finding missions would be taking the trip, but their purposes were slightly different. The draft before the plenary was of a wider nature, while the Human Rights Council resolution was more specific.  At the time when the Human Rights Council had taken the decision, there had been insufficient time to give a full statement of budget implications.  However, the Secretariat had specified that it would determine the needs and revert to the question as to whether the requirements could be absorbed.

Speaking prior to action on the text, the United States representative sought a vote on the draft, saying that he could not support the resolution that had resulted in the statement of programme budget implications being considered by the Committee.  The text was one-sided and unbalanced and would not advance the aspirations of the Palestinian and Israeli people. Therefore, he could not support resources to implement that resolution. 

His delegation also noted that the Third Committee (Social, Humanitarian and Cultural) had adopted a draft that stressed the need to avoid politically motivated and biased country-specific resolutions. Yet, today, the General Assembly was considering a resolution that was politically motivated and biased towards Israel.  The draft answered a significant question -- that of relevance and utility of the United Nations in the twenty-first century.  He questioned whether pursuing such types of resolutions furthered the goals of the Charter and whether it was a good use of resources.  His delegation strongly believed in the principle of consensus, but, in the light of the underlying resolution, he could not join consensus today.

Israel’s representative said that he strongly believed in the principle of consensus but, unfortunately, the circumstances impelled him to call for a vote.  The reconvening of the tenth emergency special session of the Assembly was another example of Member States misusing and abusing the procedures of the General Assembly.  The draft decision before the Fifth Committee paved the way for a one-sided and biased draft to be presented to the Assembly.  It ignored the fact that Palestinian actions had forced Israel to defend itself.  It also did not call on the Palestinian Authority to recognize Israel and curb violence.  If the United Nations was to be useful in the area, the real issue should be tackled.  Genuine negotiations between the parties represented the only way to settle the issue.  In that connection, it was important not to confuse speeches with progress.

Israel could not support expanding additional financial resources for the implementation of political agendas, he continued.  He respected the fact that the Fifth was a non-political professional Committee, but he could not ignore the fact that the very headline of the resolution to be debated in the Assembly “Illegal Israeli actions in Occupied East Jerusalem and the rest of Occupied Palestinian Territory” was pre-judging in a very political manner the consequences and the result even before the fact-finding mission was initiated.  The draft was also talking about occupied territories, when the actions had taken place in the territory that Israel had left over a year ago.

The Committee then proceeded to take a recorded vote on the draft decision of the Fifth Committee.  The draft was approved by 143 votes in favour to 5 against ( Australia, Federated States of Micronesia, Israel, Palau, United States), with 2 abstentions ( Canada, Kenya).  (See annex.)

Speaking in explanation of position, Australia’s representative said that he had voted against the draft, as he did not believe that the inquiry would serve any useful purpose in resolving the conflict in the Middle East.  However, the text before the Committee was on funding, and he did not believe that the mission should be funded, even if from existing resources. T he emphasis of the United Nations should be on bringing the parties together towards a peaceful settlement, rather than further inflaming the situation.  He had also voted against, as an inquiry had already been set up by the Human Rights Council.  Thus, if he disagreed on the inquiry in the first place, he would certainly object to two such inquiries.

Finland’s representative, speaking on behalf of the European Union regretted that the Committee had deviated from its customary practice of consensus.  It was desirable that the Fifth Committee, before submitting its recommendations, continue to make all possible efforts to establish broader agreement.  She agreed with the technical elements of the proposal, and said all efforts had to be made to return to the consensus principle within the Committee.

South Africa’s representative said that the Group of 77 consented with the manner of dealing with the programme budget implications.  He said it was important that the Committee act as at technical body, and regretted that not all could join it in doing so.  He was not satisfied with the recommendations, but was of the view that, because of the time constraints, it was necessary to move ahead on the issue.

Japan’s representative regretted that the decision was not in line with the consensus principle, and trusted that the Secretary-General would make its utmost effort to absorb resources.

ANNEX

Vote on Fifth Committee Decision

The draft decision containing the programme budget implications of the special session draft resolution (document A/ES-10/L.19) was adopted by a recorded vote of 143 in favour to 5 against, with 2 abstentions, as follows:

In favour:  Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Cambodia, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Libya, Liechtenstein, Lithuania, Luxembourg, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Moldova, Monaco, Montenegro, Morocco, Mozambique, Myanmar, Namibia, Nepal, Netherlands, New Zealand, Niger, Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Rwanda, Saint Lucia, San Marino, Saudi Arabia, Senegal, Serbia, Singapore, Slovakia, Slovenia, Somalia, South Africa, Spain, Sudan, Suriname, Sweden, Switzerland, Syria, Thailand, The former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United Republic of Tanzania, Uruguay, Venezuela, Viet Nam, Yemen, Zambia, Zimbabwe.

Against:  Australia, Israel, Micronesia (Federated States of), Palau, United States.

Abstain:  Canada, Kenya.

Absent:  Afghanistan, Bhutan, Bolivia, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Côte d’Ivoire, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Equatorial Guinea, Eritrea, Fiji, Grenada, Guinea-Bissau, Kazakhstan, Kiribati, Liberia, Madagascar, Marshall Islands, Mongolia, Nauru, Nicaragua, Papua New Guinea, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, Sao Tome and Principe, Seychelles, Sierra Leone, Solomon Islands, Sri Lanka, Swaziland, Tajikistan, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Vanuatu.

* *** *

For information media • not an official record