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Council 2010 Geneva, 13-22 April 2010

Agenda item: ADM 12

Document C10/68-E 13 April 2010 Original: English

Report by the Secretary-General RECOGNITION OF SAME-GENDER MARRIAGE/DOMESTIC PARTNERSHIP

Summary The terminology currently used in ITU Staff Regulations and Staff Rules does not allow the recognition of same-gender marriage and domestic partnerships for the determination of family status for the purpose of entitlements. The term “spouse” as used in those texts refers to marriage in the “conventional” sense of the term, i.e. a civil contract entered into by two individuals of opposite gender.

Action required The Council is invited to take a decision as to the necessity that ITU aligns its policies in this regard with those of most of other organizations of the UN Common System.

References Resolution 46 (Kyoto, 1994)

I.

Legal framework

1. The question of the recognition of same-gender marriage and domestic partners has been the subject of intense discussion within the United Nations common system, resulting, in 2004, in the adoption by the Chief Executives Board for Coordination (CEB) of a common policy1 based on the following principles: i) Family status for the purpose of entitlements is determined by reference to the law of nationality of the staff member concerned; ii) A marriage recognized as valid under the law of the country of nationality of a staff member will qualify that staff member to receive the entitlements provided for eligible family members; iii) A legally recognized domestic partnership contracted by a staff member under the laws of the country of his or her nationality will qualify the staff member to receive the entitlements provided for eligible family members; iv) Each organization will endeavour to implement these principles, having regard to its own circumstances and requirements.

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Chief Executives Board for Coordination (CEB), Conclusions of the seventh session of the High Level Committee on Management, London, 8 and 9 March 2004, Doc. CEB/2004/3

• http://www.itu.int/council •


-2C10/68-E 2. It is clear that indent iv) of § 1 above is a key factor in this policy, considering as it does that the common policy can impose a legal obligation on an organization only insofar as the following two conditions are met : that the organization’s own circumstances and requirements so permit; that the organization has consented to act in order to create a new requirement, i.e. that it has voluntarily, if necessary, modified the circumstances and requirements that would otherwise constitute an obvious obstacle to the creation of that requirement. 3. The Secretariat considers, precisely, that these conditions are not met such as to enable the ITU, under the conditions proposed by CEB or under other conditions which may yet come to be defined, to take account of same-gender marriages and domestic partnerships and recognize them for the purposes of granting dependency status. 4. First and foremost, the circumstances and requirements which manifestly rule out such recognition clearly stem from the ITU’s current Staff Regulations and Staff Rules, as approved by Council. 5. The Secretariat considers that there is sufficient evidence to establish quite conclusively that the term “spouse” as used in those texts refers to marriage in the “conventional” sense of the term, i.e. a civil contract entered into by two individuals that responds to the definition of traditional marriage between two persons of opposite gender. This position was upheld by the ILOAT in a case brought by a former staff member (reference Judgment 2643). 6. The Staff Regulations and Staff Rules explicitly use the terms “husband” and “wife” to refer to dependent spouses, i.e. spouses of opposite gender: - Staff Regulation 3.1 c) ii) and iii); - Staff Regulation 3.12 1) a); - Staff Rule 3.12.1 a); - Staff Rule 4.7.1 a) and c); - Staff Rule 5.3.1 k); - Staff Rule 7.1.2 c); - Staff Rule 7.1.4 b); - Staff Rule 7.1.18 f); - Staff Rule 7.5.1 f); - Staff Rule 7.5.3 c). 7. At ITU, there is no recognition of the term “domestic partners”. In this regard, there is no ambiguity as regards the scope, within the Staff Regulations and Staff Rules, of the term “spouse/conjoint”, which cannot be construed to mean anything other than “husband and wife”. 8. Secondly, as mentioned above, the common policy proposed by CEB calls for the organization to have consented to act in order to create a new requirement, i.e. to have voluntarily, if necessary, modified the circumstances and requirements that would otherwise constitute an obvious obstacle to the creation of that requirement. 9. The statutory and regulatory provisions of the ITU that are listed above include provisions from the Staff Regulations. This has two legal implications. The first is that, under No. 632 of the Convention of the International Telecommunication Union3 and Staff Regulation 12.14, Staff

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The Council shall “1 ter) approve and revise the Staff Regulations and the Financial Regulations of the Union and any other regulations as it may consider necessary, taking account of current practice of the United Nations and of the specialized agencies applying the common system of pay, allowances and pensions”. 3 The Convention, together with the Constitution of the International Telecommunication Union, is one of the organization’s basic instruments. 4

Regulation 12.1

General provisions


-3C10/68-E Regulations can be amended only by the Council of the ITU. The second is that, pursuant to Staff Rule 12.1.25, the Secretary-General of the ITU may make exceptions only to the Staff Rules, this being subject, moreover, to the proviso that no such exception shall be inconsistent with any Staff Regulation. 10. The conclusions to be drawn from this established fact are self-evident: - the Staff Regulations cited above, unless formally amended by the Council, do not allow for any interpretation or application in favor of the recognition of same-gender marriages and domestic-partnerships; - the Secretary-General of the ITU may not make any exception to the applicable texts, since this would be incompatible with the Staff Regulations. 11. By reason of the foregoing, the Secretary-General of the ITU was unable to accede to request submitted by staff members without contravening the current provisions of the Staff Regulations and Staff Rules.

II.

Proposal to be considered by Council

12 Therefore, the Council is invited to take a decision as to the necessity that ITU review its policies in this regard in order to align itself with the other organizations of the UN Common System.

“These Regulations may be supplemented or amended by the Council, without prejudice to any conditions of service quoted in the letters of appointment or contract of individual staff members and provided that, up to the date of amending the Regulations in force, there shall be no interference with the applications of the said Regulations to a staff member and that the amended Regulations shall have no retroactive effect.” 5

Rule 12.1.2

Amendment of and exceptions to Staff Rules

“a) These Rules may be supplemented or amended by the Secretary-General, without prejudice to any condition of service quoted in the letters of appointment or contract of individual staff members and provided that, up to the date of amending the Rules in force, there shall be no interference with the application of the said Rules to a staff member and that the amended Rules shall have no retroactive effect. b) Exceptions to the Staff Rules may be made by the Secretary-General, provided that no exception is inconsistent with any Staff Regulation or other decision of the Council, and provided further that it is agreed to by the staff member directly affected and is, in the opinion of the Secretary-General, not prejudicial to the interests of the Union or of any other staff member or group of staff members.”


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ANNEX 1 Situation in the UN Common system 1 The question of the recognition of same-gender marriage and domestic partnership is governed at the United Nations by the Bulletin published in September 20046 by the UN Secretary-General, according to which the practice of the Organization when determining the personal status of staff members for the purpose of entitlements under the Staff Regulations and Rules has been done, and will continue to be done, by reference to the law of nationality of the staff member concerned. 2 Requests relating to the determination of the personal status of staff members in connection with their entitlements are submitted by the Secretariat for verification by the Permanent Mission to the United Nations of the country of nationality of the staff member concerned. Once the Mission has verified that the status in question is legally recognized under the law of that country for the purposes of granting benefits and entitlements, the Secretariat takes action in accordance with that verification. 3 The following UN programs are applying the Secretary-General Bulletin: UNHCR, UNDP, WFP, UNICEF. 4 The following specialized agencies are applying their own policies, in line with the one applied in the UN: WHO, PAHO, ILO, WIPO, IFAD, UNIDO,IMO. 5 UNESCO is recognizing same-gender marriage with reference to the law of the country where the marriage was celebrated. 6 The two following agencies are considering the modification of their current policy on the basis of judgments delivered recently by the ILO Tribunal in favor of complainants: AIEA, FAO.

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ST/SGB/2004/13 of 24 September 2004

RECOGNITION OF SAME-GENDER MARRIAGE/DOMESTIC PARTNERSHIP  

The terminology currently used in ITU Staff Regulations and Staff Rules does not allow the recognition of same-gender marriage and domestic...