Meeting of States Parties

to Law of Sea Convention

129^th Meeting (AM)

LAW OF SEA CONVENTION MEETING CONSIDERS TRIBUNAL’S FINANCES, PROPOSALS TO ADJUST

JUDGES’ SALARIES, DELAYS IN REVIEWING SUBMISSIONS ON CONTINENTAL SHELF LIMITS

As they continued their annual session today, States parties to the Convention on the Law of the Sea heard a briefing by the President of the International Tribunal for the Law of the Sea on that body’s financial reports for the 2007-2008 period and recent proposed changes on the remuneration of its judges.

Taking note of the Tribunal’s reports, States parties also heard general statements on matters related to the Convention and continued their discussion of the workload of the Commission on the Limits of the Continental Shelf.

Tribunal President José Luís Jesus said the Tribunal’s total expenditure for 2007-2008 stood at €14,738,033, or 85.6 per cent of the annual amount of appropriations approved for the 2007-2008 budget of €17,214,700.  That underperformance, he said, could largely be explained by €1,850,081 in savings under “Case-related costs”.  There were also savings under “Staff costs” and “Judges”.  The Tribunal had also stepped up efforts to collect contributions in arrears for the 1996-1997 period and for 2005 to 2006, resulting in an additional €784,136 that would form part of the cash surplus for the 2007-2008 period and would be surrendered after the final cash surplus had been determined at the end of 2009.

Further, he said the external auditor had given the Tribunal’s financial statements a clean bill of health -- saying they complied with the Tribunal’s financial regulations and rules and gave a true and fair view of the net assets, financial position and results of the Tribunal’s operations.

Regarding the adjustment of the Tribunal judges’ salary, Mr. Jesus presented the Tribunal’s proposal that the meeting -- taking into account previous decisions to harmonize the Tribunal judges’ pay with that of judges of the International Court of Justice -- approve a decision to adjust the Tribunal members’ remuneration to reflect the recent revision of the emoluments of the International Court of Justice members, and to make that adjustment effective from 1 January 2009.

That proposal drew mixed reviews from delegates, with some questioning the need to adjust the pay of Tribunal judges who did not necessarily work full-time.  And it was pointed out that the Tribunal’s judges did not always live near the Tribunal, as did the International Court of Justice judges who were based in The Hague.  The Tribunal’s Registrar, Philippe Gautier, reminded delegations that Tribunal judges were elected for nine-year terms and that, according to the court’s rules, should be permanently available and attend all meetings.  The issue would be among those taken up during informal discussions this afternoon.

The meeting’s discussion on the Commission’s workload also reflected the diverging opinions of delegates on how to address the challenges of the Commission’s increasing number of submissions by coastal States.  Several delegates said it was particularly unfair for developing and small island coastal States to have their submissions pending for years in the Tribunal, especially after they had gone to great lengths to meet the Tribunal’s submission deadlines, despite their limited financial resources and technical know-how to do so.  Those countries faced the daunting prospect of institutional memory loss, leaving them to defend their submissions in the distant future, long after the departure of officers who had prepared them.  That situation was neither acceptable nor sustainable, delegates said, urging the States parties to explore ways to enhance the Commission’s capacity to facilitate timely consideration of submissions.

Other delegates took issue with the proposal to approve the Commission’s draft resolution on the nature and extent of expenses of members attending sessions of the Commission and its subcommissions.  Several said the matter was not for States parties to determine, but rather an expense to be covered solely by the nominating State.  Some were opposed to the proposal to have Commission members’ expenses funded by the regular United Nations budget.

Alexandre Tagore Medeiros de Albuquerque, Commission Chairman, also spoke today, as did Serguei Tarassenko, Director of the Division for Ocean Affairs and the Law of the Sea.

Representatives of the following States parties also made statements:  Philippines, Cuba, India, Argentina, Morocco, Japan, Kenya, Republic of Korea, Viet Nam, Mexico, Sri Lanka, Germany, Malaysia, United Kingdom, United Republic of Tanzania, United States, Sweden (on behalf of the European Union) and Guatemala.

The Observer for the Commonwealth Secretariat also spoke.

The States parties will meet again in a formal meeting at time to be announced in the Journal.

Background

The States parties to the United Nations Convention on the Law of the Sea met today to continue consideration of information by the Chairman of the Commission on the Limits of the Continental Shelf and workload of the Commission.  They were also set to take up budgetary matters, having before them the report of the external auditor for the financial period 2007-2008, with financial statements of the International Tribunal for the Law of the Sea, as at 31 December 2008 (document SPLOS/192); the report on budgetary matters for the financial period 2007-2008 (document SPLOS/193); and adjustment of the remuneration of members of the International Tribunal for the Law of the Sea (document SPLOS/194).  (For additional details of the session, see Press Release SEA/1915.)

Commission on Limits of Continental Shelf

Resuming its agenda items on the Commission, the representative of the Philippines requested clarification from the Commission Chairman regarding the timetables on submissions by member States and if those timetables were contingent upon the specific recommendations.  In view of the fact that the majority of the recommendations appeared to be concerned with administrative matters, he also wondered if it would be plausible to attend to all the submissions it had received in a timely manner.

The representative of Cuba praised the Commission for maintaining its website up to date, thus making it possible for Cuba and other States parties to closely follow the Commission’s work and keep abreast of developments among members.  She asked if there were any planned changes to the teams of Commission experts on account of the heavy workload ahead, since those experts were key to streamlining and improving the Commission’s work.

Similarly, the representative of India expressed concern regarding the Commission’s workload and how it would be addressed, noting especially the proposed 2027 deadline.  The problem was further compounded by States continuing to make more submissions, which he feared could pose even more problems.  He called for continued examination of the issue, suggesting that one way to deal with the problem was to increase the number and frequency of meetings.  Some suggestions that called for at least four sessions per year should be studied further and should take into account what and how much would be accomplished by such an increase.  All those proposals should be studied in detail, he added.

The representative of Argentina said the meeting should ask what the Commission’s limits were with regard to its mandate, as well as the limits of its powers with respect to requests for legal counsel on matters pertaining to its internal organization, which might affect its work with States parties, all which impacted its overall work.

Morocco’s representative said he was struck by the heavy volume of the Commission’s workload and its limited resources.  Developing countries that very much needed the Commission’s experience to address issues concerning the outer limits of the continental shelf should not pay the price for that situation.  It was necessary to look for new working methods to manage the Commission’s workload.

The representative of Japan supported the report presented by the Commission Chairman on Tuesday, but said that the Chairman’s subsequent powerpoint presentation outlining the Commission’s difficulty in managing its future workload was somewhat pessimistic.  The Chairman’s assessment did not take into account the increasing expertise and management abilities of the Commission.  The Commission was an independent body.  The meeting of States parties should refrain from taking over the Commission or telling it how to conduct itself.

Kenya’s representative said the process of delineation of the outer limits of the continental shelf required specialized expertise that may not be readily available in developing and small island coastal States.  Kenya’s Government had, at great cost to the country, established, trained and exposed a team of officers in order to prepare and defend its submission before the Commission.  According to the Commission Chairman’s presentation on Tuesday, a subcommission to examine Kenya’s submission would be set up in 2021, and the Commission would give its recommendations on that submission in 2022.

He expressed concern over that delay, and the increasing workload of the Commission.  The large time gap between submissions and the Commission’s consideration of them could occasion the loss of institutional memory as officers who prepared the submissions may not be able to participate during their period of examination.  It would be futile for member States, especially developing coastal States, to spend scarce resources to meet submission deadlines only to have those submissions pending for so long.  It was necessary to look at ways to enhance the Commission’s capacity to address that challenge and facilitate timely consideration of the submissions.

Republic of Korea’s representative said this year the Korean Government would contribute again to the voluntary fund to help developing countries’ members attend meetings.  Concerning the Commission’s draft proposal on the nature and extent of expenses to be covered by the nominating State, he said expenses paid should be directly related to the work of members.

The representative of Mexico expressed satisfaction with the Commission’s work, but also voiced his concerns regarding the issues of submission deadlines and urged that alternative measures be put in place to tackle the persistent problem.

The representative of Sri Lanka said he had examined with growing concern the Commission’s workload and the increase in the number of submissions over the last few years.  Like many other developing countries, his country was worried about that situation.  Moreover, Sri Lanka found it impossible to accept the deadline of 2027 for the submissions, and asked the meeting to find ways of carrying out its recommendations.

Germany’s representative also joined previous speakers by stating that, like all members of the European Union, he was also concerned about the Commission’s volume of work.  While Germany had no submissions before the Commission, the Government had supported and assisted several partner countries in Africa in their endeavours to bring submissions before the Commission within the deadline.  Germany and its Federal Institute for Geosciences and natural resources stood ready to continue with that support to States which sought its assistance.

Malaysia’s representative said he looked forward to discussing the issues surrounding the workload during the closed consultations portion of the meeting, scheduled for later today.

The representative of the United Kingdom, making reference to Argentina’s earlier remarks about the possibility of expanding the Commission’s legal mandate on the limitations of the continental shelf, as well as the limits of its powers to requests for legal counsel, said he saw no need for such change as the Commission’s mandate was clear.

Regarding the practical difficulties envisaged due to the increased workload, the representative of the United Republic of Tanzania made suggestions on how the time duration to deal with the submissions could be reduced.  Among those were increasing the frequency and duration of the subcommission meetings; increasing the number of legal and technical experts to assist the subcommission by co-opting them according to need; and improving and equipping the Division for Ocean Affairs and Law of the Sea with sufficient working facilities, including additional office space.

The representative of Argentina took the floor again to clarify earlier observations on the list of legal issues to be considered by the meeting and ways the Commission could identify the legal character of issues brought before it.  He said he did not foresee or anticipate the possibility of increasing the Commission’s limits with regard to its legal mandate on the limitations of the continental shelf, or the limits of its powers vis-à-vis requests for legal counsel.

The United States’ representative, also taking note of the Commission’s increasing workload, said that body would be able to rely increasingly on its growing expertise and experience to address that.  Echoing the statements by the representatives of Canada and Norway, she expressed concern over the proposed draft decision on the nature and extent of expenses.  That was a matter for the nominating State and the Commission to determine.  While suggestions from States parties would be helpful, the nature and extent of expenses was not a matter for the meeting to determine.  She expressed concern about expenses of Commission members being funded from the regular United Nations budget, saying the United States could not support such a move.

A representative of the Commonwealth Secretariat said the scenario presented by the Commission Chairman was worrisome.  It was not sustainable or acceptable to have submissions pending for so long.  Developing coastal States would be most affected.  They had limited financial resources and technical capacity, yet they had met their submission deadlines in the belief that their submissions would be taken up and that they would be able to exercise their sovereign rights over seabed matters.  Now those countries faced the daunting prospect of having to defend their submissions in the distant future without having access to the experts that had produced them.  That seemed grossly unfair.  He urged the States parties to take the initiative to examine creative solutions to that problem.

Responding to those comments, ALEXANDRE TAGORE MEDEIROS DE ALBUQUERQUE, Commission Chairman, said the representative of the Republic of Korea had pointed to the Commission’s decision to create a fourth subcommission to examine a submission.  That decision had been made to expedite the processing of submissions and it was an exception to the general rule that only three subcommissions could be created at the same time.

Concerning the suggestion to create a small group to examine submissions, he said the problem was not that the full group of seven members was too large to examine submissions, but rather the fact that several members could not make themselves available for extended periods of time in New York due to limited financial resources.

The meeting then took note of the information provided by the Commission Chairman.

SERGUEI TARASSENKO, Director of the Division for Ocean Affairs and the Law of the Sea, said the voluntary trust fund for facilitating the preparation of submissions to the Commission, particularly from least developed countries and small island developing States, and compliance with article 76 of the Convention, had a balance of $874,181.61 as of May 2009, thanks to generous contributions by Argentina, China, Japan and Mexico.  The voluntary trust fund for defraying the cost of participation in meetings of Commission members from developing countries had a balance of $528,673.19 as of May 2009, thanks to Ireland’s generous contribution.  He duly noted Norway’s generous pledge to the latter trust fund, on Tuesday, and the contribution by the Republic of Korea announced during the meeting.  He urged States parties to contribute generously to the funds.

International Tribunal for Law of the Sea

In his statement on budgetary and financial matters of the Tribunal, JOSÉ LUÍS JESUS, President of the International Tribunal for the Law of the Sea, reviewed three documents that had been circulated to the meeting:  the report on budgetary matters for the financial period 2007-2008 (document SPLOS/193); the report of the external auditor for the financial period 2007-2008, with financial statements of the International Tribunal as of 31 December 2008 (document SPLOS/192); and the proposal on the adjustment of the remuneration of members of the Tribunal (document SPLOS/194).

On the performance report, he told the meeting that the total expenditure for 2007-2008 stood at €14,738,033, representing 85.61 per cent of the annual amount of appropriations approved for the 2007-2008 budget of €17,214,700.  The underperformance could largely be explained by the savings, amounting to €1,850,081, under “Case-related costs”.  Those savings had been achieved owing to the fact that two urgent cases -- Case No. 14 (“Hoshinmaru”) and Case No. 15 (“Tomimaru”) -- had been submitted simultaneously in July 2007 and had been dealt with within a period of one month, as prescribed by the Rules of the Tribunal, instead of two months, had the cases been filed separately.

Furthermore, in 2008 no new case had been submitted, which had resulted in additional savings under “Case-related costs”.  There were also savings under “Staff costs” and “Judges”, the latter owing to vacant positions in the Registry during the period under review, and as a result of the resignation of five judges in 2008, the resignation of one judge in 2007 and the death of another in 2008.

Regarding the report on action taken pursuant to the decisions of the meetings of States Parties on budgetary matters, Mr. Jesus said that, in June 2006, the sixteenth Meeting of the States Parties had decided that €312,684 from the 2002 savings, corresponding to the additional appropriations for 2005, would be surrendered and deducted from the assessed contributions of the States parties (document SPLOS/146).  Pursuant to that decision, an amount of €312,684 was surrendered and deducted from the contributions of States parties in accordance with regulation 4.5 of the Tribunal’s Financial Regulations.

Similarly, in June 2007, the seventeenth Meeting of the States Parties had decided that €65,816 from the 2002 savings, €208,670 from the 2004 savings, and €351,899 corresponding to the supplementary budget to the 2005-2006 budget would be surrendered and deducted from the assessed contributions of the States parties (document SPLOS/161).  Pursuant to that decision, an amount of €626,385 euros was surrendered and deducted from the contributions of States parties in accordance with the Financial Regulations.

He noted further that the Tribunal had intensified efforts to collect contributions in arrears relating to the financial periods 1996-1997 and 2005 to 2006.  As a result, an additional €784,136 euros would be surrendered to States parties.  According to the Tribunal’s Financial Regulations, that amount would form part of the cash surplus for the financial period 2007-2008 and would be surrendered after the final cash surplus had been determined at the end of 2009.  Mr. Jesus was also pleased to report that the external auditor had found “the financial statements are in accordance with the Financial Regulations and Rules of the International Tribunal on the Law of the Sea and give a true and fair view of the net assets, financial position and results of operations” of the Tribunal.

Regarding the adjustment of the remuneration of Tribunal members, its President reminded the meeting that the level of remuneration had been established by the States parties’ fourth meeting in 1996.  On 3 April 2008, the United Nations General Assembly had adopted decision 62/547, setting, effective 1 April 2008, the annual net base salary of judges (document ASPLOS/WP.3/REV.1, paragraph 17).  Accordingly, future revisions to the annual base salary of judges at the International Court of Justice would be harmonized with revisions to be made to the base salary scale for staff in the Professional and higher categories.

He noted that, in light of that decision and given the fact that the International Court of Justice was considered comparable insofar as remuneration of Tribunal judges was concerned, the Tribunal proposed that the Meeting of States Parties take a decision to adjust the remuneration of the Tribunal members to reflect the revision of the emoluments of the International Court of Justice members.  The Tribunal’s proposal also included a recommendation that the Meeting be invited to make the adjustment effective 1 January 2009.

Continuing, he said that should the Meeting of States Parties approve, effective 1 January 2009, a revision of the annual net base salary of Tribunal judges to $161,681, based on the salary applicable to judges of the International Court of Justice from 1 January 2009, that would reflect an increase of an average of 7.12 per cent in the remuneration of Tribunal judges as compared with that calculated under the floor-ceiling mechanism.  Accordingly, an additional appropriation of €276,600 would be required to cover the corresponding increases in annual and special allowances for members of the Tribunal and compensation for judges “ad hoc” for the period January 2009 to December 2010.

Sweden’s representative, speaking on behalf of European Union, expressed satisfaction with the report of the external auditor; the fact that it had not led to an audit indicated that its financial statements had been true and the application of accounting principles had been fair.

The meeting then took note of the report of the external auditor.

Next, the meeting turned to its agenda item on the report on budgetary matters for the financial period 2007-2008 and on adjustment of the remuneration of Tribunal members.

Sweden’s representative, speaking on behalf of the European Union, took note of the report on budgetary matters, saying payment arrears remained a source of concern.  He called on States parties to pay their arrears and contributions in full, as soon as possible.

Regarding the proposals to adjust the salary system for Tribunal members, as outlined in document SPLOS/194, he said that normally the European Union could support the concept.  But it must be recalled that Tribunal judges were not required to work full-time.  Their salaries, therefore, should be adjusted accordingly.  The new maximum pension should be two thirds of the actual reduced salary, and not two thirds of the net-based salary, as was the case for full-time salaried judges.

Japan’s representative stressed the consistent need to study and assess carefully the increases involved.  The remuneration of Tribunal members should be looked at in the context of understanding that the level should be equivalent to the level given to judges of the International Court of Justice.  The proposed changes in document SPLOS/194 were justified with the understanding that, when the time came to examine the new budget, the implication of the increases would be considered so that they were kept in check, as appropriate.

Germany’s representative supported the Tribunal’s new proposal to apply the €784,136 surplus of the 2007-2008 budget to the Tribunal’s 2010 budget.

PHILIPPE GAUTIER, Registrar of the Tribunal, told delegates that there was a document at the back of the conference room showing the current state of payment of contributions to the Tribunal.  Regarding the comment that Tribunal judges only worked part-time, he said the judges were in fact elected for nine-year terms and that, according to the Tribunal’s rules, members should be permanently available and attend all meetings.  They, therefore, were always available for handling urgent procedures.  In that context, in the statute of the Tribunal’s article 7 related to incompatible activities, judges had to comply with those restrictions, and they could not work for their Governments in similar roles.

Guatemala’s representative noted that judges of the International Court of Justice lived in The Hague, but the Tribunal’s judges did not necessarily live near the Tribunal.  The issue of increasing the Tribunal judges’ remuneration should be discussed during the informal session this afternoon, taking that fact into account.

 Mr. GAUTIER said that, in 1996, the fourth Meeting of States Parties had decided that the remuneration of Tribunal judges would be maintained at levels equivalent to those of the judges of the International Court of Justice.  The pay levels were based on three elements:  one third on annual allowance; one third on attendance; and one third on a daily subsistence allowance.  The maximum remuneration for Tribunal judges when it came to establishing a floor ceiling was that it must be in alignment with the salaries of judges of the International Court of Justice.  In 2005, the fifteenth Meeting of States Parties had decided to put that system in force as an interim measure.

The meeting then took note of the report on budgetary matters for the financial period 2007-2008.

It decided to continue its review of the draft decision contained in document SPLOS/194 in an informal meeting, in the format of an open-ended working group.

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For information media • not an official record