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Exchange of Notes between the Government of Canada and the Government of the Kingdom of the Netherlands concerning Canadian Use of Netherlands' facilities as a staging base [1996] CATSer 22 (3 September 1996)

E101061 - CTS 1996 No. 21

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS CONCERNING CANADIAN USE OF NETHERLANDS' FACILITIES AS A STAGING BASE

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The Ambassador of the Kingdom of the Netherlands to the Secretary of State for External Affairs

ROYAL NETHERLANDS EMBASSY

OTTAWA, 17 January 1995

No. 14

Excellency,

I have the honour to refer to discussions that have recently taken place between representatives of our two Governments relating to Canadian use of Netherlands facilities as a staging base. I also have the honour to confirm the following agreements reached as a result of those discussions:

1. SCOPE

1.1. The procedures described herein shall apply with respect to the use by Canadian Arms Control Verification Inspection Teams of Royal Netherlands Army verification facilities currently at the General Spoor barracks of the Royal Netherlands Army at Ermelo, Netherlands.

1.2. The procedures described herein shall also apply to any subsequent facility made available in the territory of the Kingdom of the Netherlands in Europe to Canadian Arms Control Verification Inspection Teams.

2. GENERAL

2.1. With the closure of Canadian bases in the Federal Republic of Germany, there is now a requirement for all Canadian inspection operations to be mounted from Canada. The long distances involved have given rise to the requirements for a European staging facility to allow Canadian-led Inspection Teams to adapt to the European time zones and complete pre-inspection preparations before entering a designated inspected country under the Treaty on Conventional Armed Forces in Europe, Vienna Document 92 or any subsequent Arms Control Arrangements with similar inspection provisions.

2.2. Canadian-led Inspection Teams shall consist of Canadian inspectors, Canadian auxiliary personnel and Canadian-sponsored guest inspectors from states party to the relevant Arms Control Arrangements, hereinafter referred to as the "Canadian Team".

3. ADMINISTRATIVE CONTROL

The overall control of the Canadian Team, while it is in the Netherlands, shall lie with the Canadian Arms Control Verification Inspection Team Leader. The Canadian Team shall abide by the Standard Administrative Procedures (SAP) developed by the Royal Netherlands Army as a result of this Agreement.

4. STATUS

4.1. The members of the Canadian Team shall enjoy the privileges and immunities enjoyed by diplomatic agents pursuant to Article 29; Article 30, paragraph 2; Article 31, paragraphs 1, 2 and 3; and Articles 34 and 35 of the Vienna Convention on Diplomatic Relations of April 18, 1961.

4.2. Without prejudice to their privileges and immunities, it shall be the duty of all members of the Canadian Team to respect the laws and regulations of the Netherlands. They shall also have a duty not to interfere in the internal affairs of the Netherlands.

5. TRANSPORTATION AND TRAVEL EXPENSES

Ground transportation for the Canadian Team shall be by vehicles rented by the Canadian Team at its own cost. At no cost to Canada, the Royal Netherlands Army may provide military drivers to pick up the Canadian Team upon first arrival to conduct final inspection planning, during departure for and arrival from the inspected state and during the departure of the Canadian Team back to Canada (or to the respective home state). All other transportation expenses shall be the responsibility of the Canadian Team.

6. PROTOCOL SUPPORT

The Royal Netherlands Army shall provide, at no cost to Canada, a liaison official at Schiphol International Airport to assist arriving and departing Canadian Teams. This official may use the same transportation as that used by the Canadian Team.

7. ACCOMMODATION, MESSING AND FACILITIES

7.1. The Royal Netherlands Army shall provide accommodation for one team at a time at the agreed rate based upon Standardization Agreement charges to military personnel of the North Atlantic Treaty (NATO) in transit.

7.2. The Canadian Team shall pay all the costs of this accommodation on completion of their stay. The local messes shall be available to serve meals to the Canadian Team at normal mealtimes, and also during Canadian-hosted protocol events. These events shall require the agreement of the local mess manager and shall be coordinated by each Team Leader. All team members shall be afforded access to all messing and recreational facilities normally available to Netherlands military personnel; all costs incurred shall be the responsibility of the Team Leader.

8. OFFICE SPACE

The Canadian Team shall be provided free of charge with the use of a briefing room, one private office and a secure lock-up for the storage of classified documents. The Canadian Team shall be provided with continuous use of a team equipment storage room.

9. COMMUNICATIONS

The Canadian Team shall be afforded access to a telephone and a facsimile machine. The costs of all long-distance telephone charges shall be borne by the Canadian Team using telephone charge cards. The Canadian Team shall be permitted access to a commercial telephone line terminal for the use of Canadian-carried equipment. This equipment shall be connected only for the duration of the stay of the Canadian Team. The Canadian Team shall also be afforded access free of charge to a nearby message center for providing a communications link with the NATO message system.

10. FINANCIAL ARRANGEMENTS

All outstanding costs which are the responsibility of the Canadian Team shall be paid according to the rules described in the SAP.

11. MEDICAL, DENTAL AND HOSPITAL CARE

11.1 Emergency medical, dental and hospital care, shall be provided by the Royal Netherlands Army to all Canadian Team members under the same conditions as those applying to comparable personnel in the Netherlands.

11.2 The Canadian authorities shall reimburse all the costs of all services mentioned in the first paragraph of this Article.

12. LIABILITY

12.1 Each Government shall waive all its claims against the other Government and its personnel in respect of injury or loss of life of its personnel or damage to its property, caused by personnel of the other Government and sustained during the residence of the Canadian inspectors and Canadian auxiliary personnel in the Netherlands.

12.2 The Netherlands Government shall indemnify and hold harmless the Canadian Government for claims by its personnel, their assignees and risk bearers in respect of injury, loss of life and damage to its property caused by the members of the Canadian team.

12.3 The Canadian Government shall indemnify and hold harmless the Netherlands Government for claims by members of the Canadian Team, their assignees and risk bearers in respect of injury, loss of life and damage to its property caused by Netherlands personnel.

12.4 Claims arising out of acts or omissions by members of the Canadian Team in the performance of their official duty, or out of any other act, omission or occurrence for which the Canadian Team is legally responsible, and causing damage, injury of loss of life in the territory of the Netherlands to third parties, shall be dealt with by the Netherlands Government in accordance with the following provisions:

(a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the Netherlands with respect to claims arising from the activities of its own armed forces.

(b) The Netherlands Government may settle any such claims, and payment of the amount agreed upon or determined by adjudication shall be made in Netherlands currency.

(c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent Netherlands tribunal, or the final adjudication by such a tribunal denying payment shall be binding and conclusive upon the Netherlands and the Canadian Government.

(d) The cost incurred in satisfying claims as referred to in this paragraph shall be borne by the Canadian Government.

12.5. Claims against members of the Canadian Team arising out of tortious acts or omissions in the territory of the Netherlands not done in the performance of official duty shall be dealt with in the following manner:

(a) The authorities of the Netherlands shall consider the claim and assess compensation to the claimant in a fair and just manner, taking into account all the circumstances of the case, including the conduct of the injured person, and shall prepare a report on the matter.

(b) The report shall be delivered to the authorities of Canada, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount.

(c) If an offer of ex gratia payment is made, and accepted by the claimant in full satisfaction of his claim, the authorities of Canada shall make the payment themselves and inform the authorities of the Netherlands of their decision and of the sum paid.

(d) Nothing in this paragraph shall affect the jurisdiction of the Netherlands to entertain an action against a member of the Canadian Team unless there has been payment in full satisfaction of the claim.

13. ENTRY AND VISAS

13.1 In order to facilitate the entry of the Canadian Team, the Canadian Government shall communicate at the earliest possible date the names and nationalities of the members of the Canadian Team.

13.2 The members of the Canadian Team shall have the right to unimpeded entry into and exit from the Netherlands. Visas and entry permits shall, when required, be granted free of charge and with the utmost speed.

13.3 Unless otherwise specified in relevant Arms Control Arrangements, the Netherlands Government may at any time and without having to explain its decision notify the Canadian Government that any proposed member of the Canadian Team is not acceptable.

14. SETTLEMENT OF DISPUTES

14.1 If any dispute arises between the Parties relating to the interpretation or application of this Agreement, the Parties shall in the first place endeavour to settle it by negotiation between themselves.

14.2 If the Parties fail to reach a settlement by negotiation, the dispute may at the request of either Party be submitted for decision to a tribunal of three arbitrators, one to be named by each party and the third to be agreed upon by the two arbitrators thus chosen, provided that the third arbitrator is not a national of either Party. Each of the Parties shall designate an arbitrator within a period of sixty (60) days from the date of receipt by either Party from the other Party of a Diplomatic Note requesting arbitration of the dispute and the third arbitrator shall be agreed upon within a further period of sixty (60) days. If either of the Parties fails to designate its own arbitrator within a period of sixty (60) days or if the third arbitrator is not agreed upon within the period indicated, the President of the International Court of Justice may be requested by either Party to appoint an arbitrator or arbitrators.

14.3 The Parties undertake to comply with any decision made under paragraph 2 of this Article.

15. SECURITY OF INFORMATION

In the event of termination of this Agreement, the Parties shall, where possible, return all classified information transferred through the co-operation between the Parties under this Agreement. If the Return of classified information is not possible, the Parties shall continue to safeguard the information.

16. FINAL PROVISIONS

16.1 As regards the Kingdom of the Netherlands, this Agreement shall apply to the Kingdom in Europe only.

16.2 This Agreement may be amended or supplemented at any time through exchange of notes.

I have the honour to propose that, if the foregoing is acceptable to your Government, this Note and your reply to that effect shall constitute an Agreement between our two Governments which shall enter into force on the date on which both Governments have informed each other that the formalities constitutionally required therefore have been complied with. This Agreement shall continue in force until terminated by either Government on three months' notice in writing to the other. Pending entry into force, the Agreement shall be applied provisionally from the tenth day following the date of the affirmative reply of the Government of Canada.

Accept, Excellency, the renewed assurances of my highest consideration.

Johannes Fietelaars

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The Secretary of State for External Affairs to the Ambassador of the Kingdom of the Netherlands

OTTAWA, January 20, 1995

No. IDA-1072

His Excellency J. Fietelaars
Ambassador of the Kingdom of the Netherlands
Ottawa

Excellency:

I have the honour to reply to your Note No. 14 dated January 17, 1995 setting forth provisions concerning Canadian use of Netherlands' facilities as a staging base, which Note reads as follows:

(See Note from Netherlands of January 17, 1995)

In response to the above, I am pleased to state that the foregoing proposal is acceptable to my Government and that, accordingly, your Note together with the present Note in reply, which are equally authentic in English and French, shall constitute between our two Governments an Agreement which shall enter into force on the date on which both Governments have informed each other that the formalities constitutionally required therefor have been complied with, and which, pending entry into force, shall be applied provisionally from the tenth day following today's date.

Accept, Excellency, the renewed assurances of my highest consideration.

André Ouellet