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Agreement between the Government of Canada and the Secretariat of the Convention on Biological Diversity concerning the Headquarters of the Convention Secretariat [1996] CATSer 26 (26 October 1996)

E101442 - CTS 1996 No. 28

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY CONCERNING THE HEADQUARTERS OF THE CONVENTION SECRETARIAT

WHEREAS the Second Meeting of the Conference of the Parties of the Convention on Biological Diversity accepted in decision 11/19 on 17 November 1995 in Jakarta the offer of Canada, as contained in document UNEP/CBD/COP/2/Rev.1, to host in Montreal the Secretariat of the Convention on Biological Diversity, established under Article 24 of the Convention;

WHEREAS the Convention on the Privileges and Immunities of the United Nations to which Canada has been a party since 22 January 1948, applies to United Nations officials servicing the Secretariat;

NOTING decision 1/4 contained in document UNEP/CBD/COP/1/17 of the Conference of the Parties of the Convention designating UNEP to carry out the functions of the Secretariat of the Convention;

NOTING further the undertaking of the Government of Canada to ensure the availability of all the necessary facilities and conditions to enable the Secretariat of the Convention on Biological Diversity to perform its functions, including its scheduled programmes of work and any related activities;

DESIRING, therefore, to conclude an Agreement regulating matters resulting from the establishment in Montreal, Canada of the Headquarters of the Secretariat of the Convention on Biological Diversity;

THE GOVERNMENT OF CANADA AND THE SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, hereinafter referred to as the "Parties"

Have agreed as follows:

In this Agreement:

(a) "Convention" means the Convention on Biological Diversity done at Rio de Janeiro on 5 June, 1992 and entered into force on 29 December 1993;

(b) "Executive Secretary" means the Official of the Secretariat who is the Head of the Secretariat, in conformity with decision 1/4 of the Conference of the Parties contained in document UNEP/CBD/COP/1/17;

(c) "Experts on missions" means persons, other than Officials of the Secretariat, performing missions at the request of and on behalf of the Secretariat;

(d) "General Convention" means the Convention on Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946, to which Canada is a Party;

(e) "Government" means the Government of Canada;

(f) "Premises of the Secretariat" means the buildings or part of buildings occupied permanently or temporarily by the Secretariat or by meetings convened in Canada by the Secretariat;

(g) "Officials of the Secretariat" means United Nations officials assigned to service the Secretariat, irrespective of nationality, with the exception of those who are recruited locally and assigned to hourly rates;

(h) "Parties to the Convention" means States and regional economic integration organizations under Article 33 of the Convention that are parties to the Convention;

(i) "Representatives of Parties to the Convention" means persons charged by a state with the duty to act on its behalf on matters related to the Convention;

(j) "Secretariat" means the secretariat established by Article 24 of the Convention.

ARTICLE 2

1. The Secretariat shall possess juridical personality in Canada. It shall have the capacity to:

(a) contract;

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

(c) institute legal proceedings.

2. For the purposes of this Agreement, the Secretariat shall be represented by the Executive Secretary.

ARTICLE 3

1. The Premises of the Secretariat shall be inviolable. The competent Government authorities shall not enter the Premises of the Secretariat to perform official duties except with the consent of, and under conditions agreed to, by the Executive Secretary or, in his or her absence, by a senior official of the Secretariat acting on his behalf. These provisions shall not prevent the reasonable application of fire or safety regulations.

2. The Government shall accord the Premises of the Secretariat the same protection as it gives to diplomatic missions in Canada.

3. The archives, documents and electronic media, in whatever form, of the Secretariat shall be inviolable at any time wherever located.

4. The Secretariat shall prevent the Premises of the Secretariat from becoming a refuge either for persons who are avoiding arrest or for persons who are endeavouring to avoid service of legal process.

1. The Secretariat, its property, funds and assets, including funds administered in furtherance of its constitutional functions, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity, it being understood that the waiver shall not extend to any measure of execution of legal actions.

2. The property, funds and assets of the Secretariat, 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.

3. The Secretariat may hold funds, gold and currencies of any kind and operate accounts in any currency. It shall be free to transfer its funds, gold and currencies within Canada and from Canada to any other country and to convert any currency held by it into any other currency.

1. The Secretariat, its property, funds and assets shall be:

(a) exempt from all direct taxes; it is understood, however, that the Secretariat will not claim exemption from taxes which are no more than charges for public utility services;

(b) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the Secretariat for its official use. It is understood, however, that articles imported under such exemption will not be sold in Canada except under conditions agreed with the Government of Canada;

(c) exempt from customs duties and prohibitions and restrictions on imports and exports or sale in respect of its publications and other Secretariat educational and information materials.

2. While the Secretariat will not, as a general rule, claim exemption from excise duties and from taxes on the sale of movable and immovable property which form part of the price to be paid, nevertheless when the Secretariat is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable, the Government of Canada will make appropriate administrative arrangements for the remission or return of the amount of duty or tax.

1. The Secretariat shall enjoy in Canada for its official communications, treatment not less favourable than that accorded by the Government of Canada to any other Government including diplomatic missions in matters of establishment and operation, priorities, tariffs, charges on mail and cablegrams and on teleprinter, facsimile, telephone and other communications, as well as rates for information to the press and radio. No censorship shall be applied to the official correspondence and other official communications of the Secretariat.

2. The Secretariat shall have the right to use codes and to dispatch and receive its correspondence by courier or in bags, which shall have the same immunities and privileges as diplomatic couriers and bags.

3. The facilities provided for in this Article may, to the extent necessary for efficient operation, be established and operated outside the Premises of the Secretariat in the territory of Canada with the consent of the Government of Canada.

1. Meetings of the Conference of the Parties established under Article 23 of the Convention; meetings of the Subsidiary Body on Scientific, Technical and Technology Advice established under Article 25 thereof and such other Subsidiary bodies as the Conference of the Parties may establish may, at the decision of each of the bodies, be held at the seat of the Secretariat, or at any other venue in Canada.

2. The Government of Canada shall, when requested by the Secretariat, make every effort to facilitate the access of the Secretariat to conference and meeting facilities available in Canada, particularly those facilities belonging to institutions with which the Government has headquarters agreements.

1. The competent Canadian authorities shall not impose any impediments to transit to or from the Premises of the Secretariat of representatives of Parties to the Convention, observers, experts on missions, or other persons invited by the Secretariat thereto on official business.

2. Visas, where required, for persons referred to in paragraph 1, shall be issued by the Government free of charge and as promptly as possible.

3. The provisions of paragraphs 1 and 2 shall also apply, as appropriate, to the spouses and relatives dependent on the persons referred to in those paragraphs.

4. Except as provided above and in the relevant provisions of this Agreement, the Government retains full control and authority over the entry of persons or property into the territory of Canada and the conditions under which persons may remain or reside therein.

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

The representatives of Parties to the Convention attending the Conference of the Parties meetings, or meetings of the subsidiary bodies and other consultative meetings on programme implementation organized by the Secretariat shall, while discharging their duties in Canada and during their journeys to and from meetings, enjoy the following privileges and immunities:

(a) immunity from personal arrest or detention and from seizure of personal baggage, and immunity from legal process of every kind in respect of words spoken or written and all acts performed in their official capacity;

(b) inviolability of all papers, documents and electronic media;

(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 themselves and their spouses and members of their family forming part of their households from immigration restrictions, aliens registration or national service obligations;

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

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

(g) such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported, otherwise than as part of their personal baggage, or from excise duties or sales taxes.

1. The Officials of the Secretariat shall enjoy in Canada the following privileges and immunities:

(a) immunity from legal process in respect of words spoken or written and any act performed in their official capacity;

(b) exemption from taxation on the salaries and emoluments paid to them by the Secretariat;

(c) immunity for themselves, their spouses and relatives dependent on them from immigration restrictions and aliens registration procedures;

(d) immunity from national service obligations;

(e) the same repatriation facilities in time of international crisis for themselves, their spouses and relatives dependent on them as are accorded to diplomatic agents;

(f) the same privileges in respect of exchange facilities as accorded to officials of comparable rank forming part of diplomatic missions in Canada; and

(g) the right to import free of duty their furniture and effects, including motor vehicles, at the time of first entry into Canada, or in the case of former residents of Canada returning to Canada to resume residence in Canada after having been residents of another country, the right, subject to the applicable legislation, to import free of duty their furniture and effects, including motor vehicles, at the time of their return to Canada.

2. In addition to the immunities and privileges specified in paragraph 1 of this Article, the Executive Secretary, and his or her spouse and relatives dependent on him or her, unless they are Canadian citizens or are permanent residents in Canada as defined by applicable Canadian legislation, shall be accorded the same privileges, immunities and facilities as are enjoyed by diplomatic agents and their families in Canada.

3. In addition to the immunities and privileges specified in paragraph 1, officials of the Secretariat belonging to senior categories of grade P-4 and above, their spouses and relatives dependent on them, unless they are Canadian citizens or are permanent residents in Canada as defined by applicable Canadian legislation, shall be accorded the privileges, immunities and facilities as are granted to diplomatic agents of comparable rank in Canada.

The Government of Canada undertakes to grant to Experts on Missions for the Secretariat, the privileges and immunities and facilities set out in Article VI of the General Convention.

Dependents of Officials of the Secretariat shall, upon application, receive authorization for employment in Canada.

ARTICLE 14

1. The privileges and immunities of Officials of the Secretariat and of experts are accorded in the interest of the United Nations and not for the personal benefit of the individuals themselves.

2. The right and duty to waive the immunity referred to in paragraph 1, in any case, where it can be waived without prejudice to the interests of the United Nations, shall lie with the Secretary-General, of the United Nations.

1. 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.

2. The Secretariat shall cooperate at all times with the appropriate authorities of Canada to facilitate the proper administration of justice, secure the observance of police regulations and avoid the occurrence of any abuse in connection with the privileges, immunities and facilities referred to in this Agreement.

No person shall be accepted as a representative of a Party to the Convention, an Official of the Secretariat or an Expert on Mission for the purposes of Articles 10, 11 and 12 respectively, unless and until his or her name and status have been duly notified to the Minister of Foreign Affairs of Canada.

1. The Government of Canada shall provide all officials of the Secretariat as well as their dependents with an identity card certifying their status under this Agreement.

2. The Government of Canada shall recognize and accept United Nations laissez-passers held by officials of the Secretariat as valid travel documents. Visas, where required, shall be granted free of charge and as promptly as possible.

1. Any dispute concerning the interpretation or implementation of this Agreement that is not settled by negotiation or other agreed method of settlement shall, at the request of either Party, be referred to a tribunal of three arbitrators, one to be appointed by the Minister of Foreign Affairs of Canada, one to be appointed by the Executive Secretary and the third to be appointed by the two arbitrators. If, within thirty days of the request for arbitration or if, within fifteen days of the appointment of two arbitrators, the third arbitrator has not been appointed, either Party may request the President of the International Court of Justice to appoint an arbitrator.

2. The procedure of arbitration shall be determined by the arbitrators, and the expenses of the arbitration shall be borne by the Parties as assessed by the arbitrators. The arbitral award shall contain a statement of the reasons on which it is based and shall be accepted by the Parties as the final adjudication of the dispute.

3. The Secretariat shall take the measures necessary for ensuring the proper settlement of disputes arising out of contracts or other disputes of a private law character to which the Secretariat is a party.

1. When a provision of this Agreement and a provision of the General Convention deal with the same subject, both provisions shall be considered complementary. Whenever possible, both of them shall be applied and neither shall restrict the force of the other.

2. This Agreement shall apply, mutatis mutandis, to such other bodies of the Convention on Biological Diversity as may in future be set up in Canada by the Conference of the Parties with the consent of the Government of Canada.

3. This Agreement shall enter into force upon signature.

4. This Agreement may be amended by mutual consent at any time at the request of either Party.

5. This Agreement shall continue in effect indefinitely.

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

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

DONE at New York this 25th day of October 1996, in duplicate in the English and the French languages, each version being equally authentic.

Robert Fowler

FOR THE GOVERNMENT OF CANADA

Elizabeth Dowdeswell

FOR THE SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY