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Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization [1992] CATSer 4 (20 February 1992)

E101905 - CTS 1992 No. 7

HEADQUARTERS AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE INTERNATIONAL CIVIL AVIATION ORGANIZATION

The Government of Canada and the International Civil Aviation Organization

Noting the Government of Canada's obligations as Host State to the International Civil Aviation Organization,

Recognizing the increasing importance of civil aviation to international relations and of the International Civil Aviation Organization to civil aviation,

Conscious of the need to replace the Agreement Between the Government of Canada and the International Civil Aviation Organization Regarding the Headquarters of the International Civil Aviation Organization, signed at Montreal on April 14, 1951, in order to provide for the Organization in Canada improved conditions to carry out its mandate,

Desiring in particular to improve the status, privileges, immunities and facilities of the Headquarters of the International Civil Aviation Organization and persons connected with it,

Have agreed as follows:

ARTICLE 1

Definitions

For the purpose of the present agreement:

(a) "organization" means the International Civil Aviation Organization, established under Article 43 of the Convention on International Civil Aviation, signed at Chicago on December 1, 1944;

(b) "Headquarters premises" means the buildings or part of buildings occupied permanently or temporarily by any unit of the organization or by meetings convened in Canada by the Organization;

(c) "Officials of the organization" means the President of the Council, the Secretary General and internationally recruited staff of the Organization in professional and higher categories and other staff employed by the organization on the basis of a letter of appointment or a contract;

(d) "Member States" means the States that are parties to the convention on International Civil Aviation;

(e) "Mission" means a mission of permanent character representing a Member State to the Organization, established in Canada by that State;

(f) "Head of permanent mission" means the person charged by a Member State with the duty of acting in that capacity;

(g) "Premises of the mission" means the offices occupied by a mission, including the residence of the head of mission;

(h) "Permanent Representative" of a Member State means the head of mission and other officers of a mission, but excluding administrative and service staff;

(i) "Representative" of a Member State means a representative other than a Permanent Representative and shall include all delegates, deputy delegates, advisers and experts;

(j) "Members of the administrative staff" means the members of the staff of a mission employed in the administrative service of the mission;

(k) "Members of the service staff" are the members of the staff of the mission employed in the domestic service of the mission and who are employees of the Member State;

(l) "Private servant" means a person who is in the domestic service of a member of a mission and who is not an employee of the Member State;

(m) "Permanent resident of Canada" means a person admitted to Canada for permanent residence in accordance with applicable Canadian immigration legislation;

(n) "Diplomatic agent" means a diplomatic agent as referred to in the Vienna Convention on Diplomatic Relations of 18 April 1961.

THE ORGANIZATION

ARTICLE 2

Legal personality

The Organization shall possess juridical personality. It shall have the legal capacities of a body corporate, including the capacity:

(a) to contract;

(b) to acquire and dispose of immovable and movable property; and

(c) to institute legal proceedings.

ARTICLE 3

Immunity of property and assets

(1) The Organization, its property and its assets, wherever located and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign states.

(2) For the purpose of this Article, and Articles 4 and 6, the word "assets" shall also include funds administered by the Organization in furtherance of its constitutional functions.

ARTICLE 4

Inviolability of premises

(1) The headquarters premises of the Organization inviolable.

(2) The Government of Canada shall accord to the headquarters premises the same protection as is given to diplomatic missions in Canada.

(3) The property and assets of the Organization, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action, except with the consent of and under the conditions agreed to by the Secretary General of the Organization. This section shall not prevent the reasonable application of fire protection regulations.

(4) The Organization shall, however, prevent the headquarters premises from becoming a refuge either for persons who are avoiding arrest or for persons who are endeavouring to avoid service or execution of legal process.

ARTICLE 5

Inviolability of archives

The archives and documents of the Organization shall be inviolable at any time wherever they may be.

ARTICLE 6

Exemption from taxes and duties

The Organization, its assets, income and property, owned or occupied in Canada, shall be:

a) exempt from all direct taxes other than charges for public utility services;

b) exempt from customs duties, taxes and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the Organization in furtherance of its functions; articles imported under such exemption will not be sold or disposed of in Canada except under conditions agreed to by the Government of Canada;

c) exempt from any prohibition or restriction on import, export or sale of its publications, and exempt from customs duties and excise taxes in respect thereof.

ARTICLE 7

Exemption from customs duties and taxes on goods and services

When goods are purchased under appropriate certificates from manufacturers or wholesalers who are licenced under the Excise Tax Act, the organization shall be eligible to claim for the remission or refund of the Excise tax and/or the consumption or sales tax or any other tax for services and goods imported or purchased in Canada in furtherance of its functions provided, however, that any article which is exempted from these taxes, other than publications of the organization, shall be subject thereto at existing rates if sold or otherwise disposed of within a period of one year from the date of purchase, and the vendor shall be liable for such tax.

ARTICLE 8

Right to hold and transfer funds

The organization may hold funds, gold or currency, of any kind and operate accounts in any currency and it shall be free to transfer its funds, gold or currency, from one country to another or within Canada and to convert any currency held by it into any other currency. The organization, in exercising the rights provided in this Article, shall pay due regard to any representations made by the Government of Canada insofar as it is considered that effect can be given to such representations without detriment to the interests of the Organization.

ARTICLE 9

Communications

(1) The Organization shall enjoy the territory of Canada for its official communications, in whatever form, treatment not less favourable than that accorded by the Government of Canada to any foreign state, including its diplomatic mission.

(2) The Government of Canada shall permit and protect free communication on the part of the Organization for all official purposes. The organization shall have the right to use codes and to despatch and receive its correspondence by courier or in bags, which shall have the same immunities and privileges as diplomatic couriers and bags. However, the Organization may install and use a wireless transmitter only with the consent of the Government of Canada.

ARTICLE 10

Use of aircraft

Any aircraft owned, operated or chartered by the organization, by a permanent Representative, a Representative or by officials of the Organization, when used on official business or for or in connection with official meetings of the Organization, does not need prior permission for entry into or departure from Canadian territory, provided that prior notice be given to appropriate Canadian aeronautical authorities, and provided that any aircraft used will be subject to the applicable Aeronautical Laws and Regulations of Canada.

ARTICLE 11

Interruption of public services

In case of interruption or threatened interruption of public services, including communications and transportation, the Government of Canada will consider the needs of the Organization as being of equal importance with the similar needs of its essential agencies and attempt to ensure that the work of the Organization is not prejudiced.

REPRESENTATIVES OF MEMBER STATES

ARTICLE 12

Permanent Representatives

Persons designated by a Member State as permanent Representatives to the organization, shall enjoy in respect of themselves, and members of their families forming part of their households, the same privileges and immunities, subject to corresponding conditions and obligations, as are enjoyed by diplomatic agents and their families in Canada.

ARTICLE 13

Other Representatives

Any Representative of a Member State who is not covered by Article 12 shall, while exercising his functions and during his journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) immunity from personal arrest or detention and from seizure of his personal baggage, and, in respect of words spoken or written and all acts performed by him in his capacity as Representative, immunity from legal process of every this immunity from legal process shall continue to be accorded notwithstanding that the person concerned is no longer the Representative of a Member State;

(b) inviolability for all papers and documents;

(c) the right to use codes and to receive and send papers or correspondence by courier or in sealed bags;

(d) exemption in respect of himself and his spouse and members of his family forming part of his household from immigration restrictions, aliens registration or national service obligations;

(e) the same facilities in respect of currency or exchange restrictions as are accorded to diplomatic agents;

(f) the same exemption from examination of personal baggage as diplomatic agents;

(g) the privilege of admission of articles other than motor vehicles for their personal or family use free of duty and taxes at all times, provided that any article which was exempted from duty and taxes shall be subject thereto at the existing rates if sold or otherwise disposed of in Canada within a period of one year from the date of acquisition and the vendor shall be liable for such duties and taxes;

(h) the privilege of exemption from excise duty imposed under the Excise Act on domestic spirits and tobacco purchased from licensed manufacturers in Canada;

(i) the privilege of exemption from excise and/or sales tax on domestic spirits, wine, and tobacco products when purchased direct from licensed manufacturers for the personal use of the applicant, and on ale, beer and stout when purchased under appropriate certificate from licensed manufacturers, provided that any article which was exempted from these taxes shall be subject thereto at the existing rates if sold or otherwise disposed of in Canada within a period of one year from the date of purchase and the vendor shall be liable for such tax.

ARTICLE 14

Other staff

Members of the administrative staff of a mission, together with members of their families forming part of their households, members of the service staff of a mission, and private servants of members of a mission shall enjoy, if they are not nationals or permanent residents of Canada, the privileges and immunities accorded to the same categories of persons under the Vienna Convention on Diplomatic Relations, subject to corresponding conditions and obligations.

ARTICLE 15

Inviolability of mission

The premises of the mission and the residence of a Permanent Representative shall be inviolable. Canadian authorities may not enter them, except with the consent of the head of mission. The premises of the mission and the residence of a Permanent Representative, together with the furnishings and other property thereon, and the means of transport of the mission, shall be immune from search, requisition, attachment and execution.

ARTICLE 16

Exemption from taxation

Where the incidence of any form of taxation depends upon residence, periods during which a Permanent Representative or Representative is present in Canada for the discharge of his duties shall not be considered as periods of residence.

ARTICLE 17

Purpose of privileges and immunities

(1) Privileges and immunities are accorded to Permanent Representatives, Representatives, administrative staff, service staff, and private servants of members of the mission, not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the Organization. Consequently, a Member State not only has the right, but is under a duty to waive the immunity of such persons in any case where, in the opinion of the Member State, the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.

(2) Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of Canada. They also have a duty not to interfere in the internal affairs of Canada.

ARTICLE 18

Notification of designation

No person shall be entitled to the privileges and immunities accorded under Articles 12, 14, and 16 unless and until the name and status of such person shall have been duly notified to the Secretary of State for External Affairs.

OFFICIALS OF THE ORGANIZATION

ARTICLE 19

Senior officials

(1) The President of the Council and the Secretary General of the Organization shall be accorded, in respect of themselves, and members of their families forming part of their households, the same privileges and immunities, subject to corresponding conditions and obligations, as are enjoyed by diplomatic agents in Canada.

(2) The Deputy Secretary General, the Assistant Secretaries General, and officers of equivalent rank shall be accorded, in respect of themselves, and members of their families forming part of their households, the same privileges and immunities, subject to corresponding conditions and obligations, as are enjoyed by diplomatic agents and their families in Canada.

(3) In addition, officials belonging to senior categories designated by the Secretary General and accepted by the Government of Canada shall be accorded in respect of themselves and members of their families forming part of their households the privileges and immunities, subject to corresponding conditions and obligations, as are granted to diplomatic agents.

ARTICLE 20

Other officials

Except insofar as in any particular case any privilege or immunity is waived by the Secretary General of the Organization, officials who are not covered by Article 19 shall:

(a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity;

(b) be immune, together with their spouses and members of their families forming part of their households, from immigration restrictions and aliens registration;

(c) be immune from national service obligations;

(d) be given, together with their spouses and members of their families forming part of their households, the same repatriation facilities in time of international crisis as diplomatic agents;

(e) be accorded the same privileges in respect of exchange facilities as are accorded to officials of comparable ranks forming part of diplomatic missions in Canada;

(f) have the right to import free of duty their furniture and effects, including motor vehicles but not including spirituous liquors, at the time of first taking up their post in Canada;

(g) be exempt from taxation on the salaries and emoluments paid to them by the Organization.

ARTICLE 21

Purpose of privileges and immunities

(1) Privileges and immunities under Articles 19 and 20 are accorded to officials in the interests of the Organization and not for the personal benefit of the individuals themselves. The Secretary General of the Organization shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the Organization. In the case of the president of the Council and the Secretary General of the Organization, the Council of the Organization shall have the right to waive the immunity.

(2) Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of Canada. They also have a duty not to interfere in the internal affairs of Canada.

ARTICLE 22

Notification

No person shall be entitled to the privileges and immunities accorded under Articles 19 and 20 unless and until the name and status of such person shall have been duly notified to the Secretary of State for External Affairs.

CANADIAN CITIZENS AND PERMANENT RESIDENTS

ARTICLE 23

Representatives of states

Notwithstanding the provisions of Articles 12, 13, 14, 15 and 16, a Permanent Representative, a Representative, or a member of the administrative staff of a mission of a member state, who is a citizen or a permanent resident of Canada shall not enjoy any privileges, and shall enjoy only immunity from legal process in respect of words spoken or written and of all acts performed by him in his official capacity.

ARTICLE 24

Officials of the Organization

An official of the Organization who is a Canadian citizen or a permanent resident of Canada shall enjoy only those privileges and immunities set forth in Article 20(a), (b) and (c), and Article 25. Moreover, an official of the Organization who is or becomes a Canadian citizen ordinarily residing in Canada, or a permanent resident of Canada, upon retirement, shall not enjoy exemption from taxation on the pension which may be paid to him with respect to his services with the Organization.

ARTICLE 25

Taxation of Canadian citizens and permanent residents of Canada

Salaries and emoluments paid by the Organization to officials of the Organization who are Canadian citizens or permanent residents of Canada, and subject to a staff assessment by the organization in lieu of national income tax, shall not be taxed and shall not be used for the purpose of determining Canadian tax due on income earned from sources other than the Organization. Nevertheless, in determining eligibility for the receipt of Canadian refundable tax credits intended to assist members of low-income groups, salaries and emoluments paid by the Organization to Canadian citizens and permanent residents of Canada shall be taken into account.

OTHER ENTRY AND EXIT FACILITIES

ARTICLE 26

Death, Termination of Employment, Removal of assets

In the event of the death of a member of a mission who is not a national of or permanent resident of Canada, or of a member of his family forming part of his household, Canada shall permit the withdrawal of the movable property of the deceased, with the exception of any such property acquired in Canada the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property, the presence of which in Canada was due solely to the presence there of the deceased as a member of a mission. The same shall apply mutatis mutandis to an official of the organization on termination of his employment with the organization or upon death.

ARTICLE 27

United Nations Laissez-passer

The Government of Canada shall recognize and accept United Nations laissez-passer held by officials of the Organization as valid travel documents.

ARTICLE 28

Diplomatic and courtesy visas

The Government of Canada shall issue, on request, diplomatic visas to a Permanent Representative or a Representative of a Member State and, as may be appropriate, diplomatic or courtesy visas to officials of the Organization.

ARTICLE 29

Other entry facilities

The Government of Canada shall permit and facilitate the entry into Canada of:

(a) representatives of the United Nations or its Agencies required to attend the headquarters premises on official business;

(b) representatives of the press, or of radio, television, film, or other information agencies who have been accredited to the Organization, after consultation with the Government of Canada.

ABUSE OF PRIVILEGES AND IMMUNITIES

ARTICLE 30

Prevention of abuse

The Organization shall facilitate the proper administration of justice, secure the observance of police regulations, and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Agreement.

ARTICLE 31

Activities outside official functions

The Government of Canada may not require permanent Representatives, Representatives of Members States or officials to leave the country on account of any activities performed by them in their official capacity. In the case of acts performed by a permanent Representative or a Representative of a Member State or an official of the Organization that are incompatible with his status, the Government of Canada may require any such person to leave the country provided that:

(a) permanent and other Representatives of Member States and officials covered by Article 19 shall be required to leave the country only in accordance with the diplomatic procedure applicable to diplomatic agents accredited to Canada;

(b) Officials covered by Article 20 shall be required to leave the country only with the approval of the Secretary of State for External Affairs after consultation with the Secretary General of the Organization; and, if expulsion proceedings are taken, the Secretary General of the Organization shall have the right to appear in any such proceedings on behalf of the person against whom they are instituted.

SETTLEMENT OF DISPUTES

ARTICLE 32

Disputes with the Government of Canada

(1) Any dispute between the Organization and the Government of Canada concerning the interpretation or application of this Agreement or of any supplementary agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one to be named by the President of the Council of the Organization, one to be named by the Secretary of State for External Affairs, and the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the International Court of Justice.

(2) The President of the Council of the Organization or the Government of Canada may ask the Assembly of the Organization to request of the International Court of Justice an advisory opinion on any legal question arising in the course of the arbitral proceedings. Pending the receipt of the opinion of the Court, an interim decision of the arbitral tribunal shall be observed by both parties. Thereafter, the arbitral tribunal shall render a final decision having regard to the opinion of the Court.

ARTICLE 33

Other Disputes

The Organization shall make adequate provision for appropriate modes of settlement of:

(a) disputes arising out of contracts or other disputes to which the organization is a party;

(b) disputes involving any officials of the organization if their immunity has not been waived in accordance with Article 21.

NATIONAL SECURITY

ARTICLE 34

Nothing in this Agreement shall be construed as in any way diminishing, abridging, or weakening the right of the Canadian authorities to safeguard the security of Canada, provided that the Organization shall be immediately informed in the event that the Government of Canada shall find it necessary to take any action against any person enumerated in the Agreement.

FINAL CLAUSES

ARTICLE 35

Interpretation of Agreement

This Agreement shall be construed in the light of its primary purpose, that is, to enable the Organization at its headquarters in Canada fully and efficiently to discharge its responsibility and to fulfil its purposes.

ARTICLE 36

Prohibition of Discrimination

It is agreed that no discrimination as to race, sex, language or religion shall be permitted under the operation of this Agreement.

ARTICLE 37

Removal of Seat of organization

This Agreement shall cease to be in force if the seat of the organization is removed from the territory of Canada, except for such provisions as may be applicable in connection with the orderly termination of the operations of the organization at its seat in Canada and the disposition of its property therein.

ARTICLE 38

Revision of Agreement

This Agreement is subject to revision at the request of either of the Parties, who shall consult each other and mutually agree on any alterations to be made. The Secretary General of the Organization may conclude with the Government of Canada supplementary agreements adjusting or complementing the provisions of this Agreement so far as this is deemed desirable.

ARTICLE 39

Entry into force

This Agreement shall enter into force in accordance with an Exchange of Notes between the President of the Council and the Government of Canada. On entry into force of this Agreement the Agreement between the Government of Canada and the International Civil Aviation Organization regarding the Headquarters of the International Civil Aviation Organization, signed at Montreal on April 14, 1951, shall be terminated. However the supplementary Agreement between Canada and the International Civil Aviation Organization, signed at Ottawa and Montreal, September 12 and 16, 1980, shall remain in force until terminated pursuant to Article VIII of that Agreement.

ARTICLE 40

Duration of the Agreement

This Agreement shall continue in effect indefinitely.

IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Agreement.

DONE in duplicate, in the English and French languages, both texts being equally authentic, at Calgary and Montreal on the 4^th and 9^th days of October, one thousand nine hundred and ninety.

Joe Clark

FOR THE GOVERNMENT OF CANADA

Assad Kotaite

FOR THE INTERNATIONAL CIVIL AVIATION ORGANIZATION