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Headquarters Agreement between the Government of Canada and the Commission for Environmental Cooperation [1997] CATSer 21 (30 May 1997)

E101916 - CTS 1997 No. 27

HEADQUARTERS AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE COMMISSION FOR ENVIRONMENTAL COOPERATION

THE GOVERNMENT OF CANADA AND THE COMMISSION FOR ENVIRONMENTAL COOPERATION, hereinafter referred to collectively as "Parties", and individually as "Party":

NOTING the establishment of the Commission pursuant to the North American Agreement on Environmental Cooperation concluded by the Government of Canada, the Government of the United Mexican States and the Government of the United States of America on September 14, 1993 and having entered into force January 1st, 1994 for Canada, the United Mexican States and the United States of America;

NOTING the Government of Canada's obligations as Host State to the Commission;

WISHING to conclude an agreement respecting the establishment in Canada of the Secretariat of the Commission; and,

DESIRING, in particular, to define the status, privileges and immunities of the Commission and of the persons connected with it;

ARTICLE I

Definitions

For the purposes of this Agreement:

(a) "Commission" means the Commission for Environmental Cooperation;

(b) "Council" means the Council as created by the North American Agreement on Environmental Cooperation;

(c) "Members of the Council" means the representatives of the Parties to the North American Agreement on Environmental Cooperation appointed pursuant to paragraph 1 of Article 9 of that Agreement;

(d) "Secretariat" means the Secretariat of the Commission;

(e) "Executive Director" means the Executive Director of the Secretariat;

(f) "Director" means a Director of the Secretariat;

(g) "Officials" means members of the staff of the Secretariat, other than the Directors, who were appointed and are supervised by the Executive Director;

(h) "Experts" means persons, other than Officials, performing missions for the Commission.

THE COMMISSION

ARTICLE II

The Commission shall possess in Canada juridical personality. It shall have the capacity:

(a) to contract;

(b) to acquire and dispose of property; and

(c) to institute legal proceedings.

ARTICLE III

Property and Assets

The Commission, its property and its assets, wherever located and by whomever held, shall enjoy immunity from every form of judicial process except insofar as in any particular case the Council has expressly waived its immunity. Such waiver shall be understood not to extend to any measure of execution, save with the express consent of the Council.

ARTICLE IV

1. The premises of the Commission shall be inviolable. The property and assets of the Commission, 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 Council. This Article shall not prevent the reasonable application of fire protection regulations.

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

3. The archives and documents of the Commission shall be inviolable at any time and wherever located.

ARTICLE V

1. The Commission, its assets, income and other property shall be:

(a) exempt from all direct taxes except for charges for public utility services;

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

(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.

2. While the Commission 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 Commission is making important purchases for official use of property in 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.

ARTICLE VI

Right to Hold and Transfer Funds

The Commission 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 Commission, 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 Commission.

ARTICLE VII

The Commission shall enjoy in 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 missions.

THE COUNCIL

All Members of the Council shall enjoy in Canada privileges and immunities comparable to the privileges and immunities accorded to diplomatic representatives in Canada.

THE SECRETARIAT

The Executive Director and the Directors shall be accorded, in respect of themselves and members of their families forming part of their households, privileges and immunities, comparable to those enjoyed by diplomatic agents and members of their families forming part of their households in Canada.

ARTICLE X

1. Officials 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 exempt from taxation on the salaries and emoluments paid to them by the Commission;

(c) be immune from national service obligations;

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

(e) be accorded the same privileges in respect of exchange facilities as are accorded to the 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 excluding alcoholic beverages and tobacco products, at the time of first taking up their post in Canada.

2. The immunity of Officials from legal process in respect of words spoken or written and all acts done by them in their capacity as Officials shall continue to subsist after their functions have come to an end.

ARTICLE XI

1. Experts performing missions for the Commission shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded:

(a) immunity from personal arrest or detention and from seizure of their personal baggage;

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

(c) inviolability for all papers and documents;

(d) the same immunities in respect of their personal baggage as are accorded to diplomatic envoys.

2. The immunity of Experts from legal process in respect of words spoken or written and all acts done by them in their capacity as Experts shall continue to subsist after their functions have come to an end.

ARTICLE XII

Where the incidence of any form of taxation depends upon residence, periods during which a person contemplated in Articles VIII to XI, other than a citizen or a permanent resident of Canada, is present in Canada for the discharge of his duties shall not be considered as periods of residence in Canada.

ARTICLE XIII

1. Notwithstanding Articles VIII, IX and X, a Member of the Council, the Executive Director, a Director, or an Official who is a citizen or a permanent resident of Canada, as defined by the applicable Canadian immigration legislation, shall enjoy only those privileges and immunities set forth in paragraphs 1 (a), (c) and (e) and 2 of Article X.

2. An Expert who is a citizen or permanent resident of Canada, as defined by the applicable Canadian immigration legislation, shall enjoy only those privileges and immunities set forth in paragraphs 1 (b) and (c) and 2 of Article XI.

3. The Executive Director, Directors and Officials who are citizens or permanent residents of Canada shall be allowed to deduct from the national income tax otherwise payable by them an amount determined in accordance with the relevant income tax legislation of Canada in respect of the amount of the staff assessment levied by the Commission in lieu of national income tax on salaries and emoluments paid by the Commission to the Executive Director, the Directors and the Officials.

ARTICLE XIV

1. Privileges and immunities are granted to Members of the Council, the Executive Director, Directors, Officials and Experts in the interests of the Commission and not for the personal benefit of the individuals themselves.

2. Consequently,

(a) the Party to the North American Agreement on Environmental Cooperation of which the Member of the Council is one of its representatives, in a case involving a Member of the Council,

(b) the Council, in a case involving the Executive Director or a Director,

(c) the Executive Director, in a case involving Officials and Experts,

shall have the right and the duty to waive the immunity in any case where, in their opinion, the immunity would impede the course of justice and could be waived without prejudice to the purpose for which the immunity is accorded.

ARTICLE XV

No person shall be entitled, as a Member of the Council, Executive Director, Director, Official or Expert, to immunities and privileges accorded in Articles VIII, IX, X and XI, unless and until his or her name and status have been duly notified to the Minister of Foreign Affairs of Canada.

ARTICLE XVI

Dependents of Officials, of the Directors or of the Executive Director will receive authorization to accept employment in Canada. "Dependents" means (a) spouses; (b) unmarried dependent children under 21 or under 25 if in full-time attendance at a post-secondary educational institution; and (c) unmarried children who are incapable of self-support.

ARTICLE XVII

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 the duty not to interfere in the internal affairs of Canada.

2. The Commission shall cooperate at all times with the appropriate Canadian authorities to facilitate the proper administration of justice, secure the observance of Canadian laws and regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Agreement.

ARTICLE XVIII

Settlement of Disputes

Any dispute concerning the interpretation or application of this Agreement or of any supplementary agreement which is not settled by negotiation or other mode of settlement agreed by the Parties shall be referred to a tribunal of three arbitrators for final decision. One arbitrator shall be designated by the Executive Director, and another by the Minister of Foreign Affairs of Canada. These two arbitrators shall appoint a third arbitrator.

ARTICLE XIX

1. This Agreement shall enter into force on the date of its signature.

2. This Agreement may be amended by mutual consent at any time at the request of either Party. Any amendment shall enter into force by mutual agreement between the Parties.

3. This Agreement shall continue in force unless terminated by either Party giving two years' notice in writing to the other Party.

4. This Agreement shall terminate six months after the date of termination of the North American Agreement on Environmental Cooperation.

IN WITNESS WHEREOF, the undersigned, being duly authorized for such purpose by the Government of Canada and the Commission for Environmental Cooperation respectively, have signed this Agreement.

DONE at Montreal on May 30th, 1997, and at Ottawa on May 29th, 1997, in duplicate in the English, French and Spanish languages, all texts being equally authentic.

Anthony Clarke

FOR THE GOVERNMENT OF CANADA

Victor Lichtinger

FOR THE COMMISSION FOR ENVIRONMENTAL COOPERATION