Volume #16 - 637.|
ORGANISATION DE L'AVIATION CIVILE INTERNATIONALE
ACCORD SUR LE SIÈGE
Note du sous-secrétaire d'État aux Affaires extérieures|
pour le secrétaire d'État aux Affaires extérieures
le 12 septembre 1951|
RE HEADQUARTERS AGREEMENT WITH ICAO|
On December 1, 1949, the Department sent to ICAO a sixth draft of a proposed Headquarters Agreement between the Government of Canada and that organization. In a letter to you dated April 14, 1950,† Dr. Warner, President of the Council of ICAO, informed you that the Council, after considering the terms of the draft Agreement, proposed further amendments for the government's consideration. The majority of these amendments were of a minor nature and have now been approved by all the departments concerned. You will recall that in his interview with you on June 27 of this year, Dr. Warner made it clear that what ICAO really wanted boiled down to two things:
(a) that representatives of member states and senior officials of the organization be granted the status of diplomatic envoys and,
(b) that the federal government effectively support ICAO in its approach to Quebec to obtain certain privileges and exemptions from that province.
2. This memorandum deals only with Dr. Warner's first problem. I intend to deal with the steps that the Department might take to assist ICAO's negotiations with the Province of Quebec in a later memorandum to you because this matter does not seem as urgent as the need to inform ICAO of the government's, views with respect to the recent proposed amendments to the Headquarters Agreement.
3. Dr. Warner has frequently mentioned the importance he attaches to Council members and senior officials of the organization having the status of diplomatic envoys but neither he nor the Council have advanced any valid reasons for such a request. It seems that the matter of prestige alone is the underlying motive. In my view the government's offer of privileges, immunities and facilities, contained in our draft Agreement, is very generous and in fact includes most of the privileges and immunities now enjoyed by foreign diplomats in Canada. Certainly what the government is offering is adequate to safeguard the independent exercise of the functions of ICAO in Canada. I have come to the conclusion that it would not be appropriate at this time for the federal government to grant diplomatic status to representatives of members of an international organization, even though it be a specialized agency of the United Nations. The following are the principal reasons for this conclusion:
(a) International law, at the present time, does not provide for the granting of diplomatic privileges and immunities to representatives of members of international organizations. Some diplomatic privileges and immunities come within provincial jurisdiction, but because they are provided for in international law, the federal government can guarantee them in view of the fact that the provinces recognize themselves to be bound by international law. It is most unlikely that Quebec would co-operate in according exemption from the normal jurisdiction of its authorities and courts, if such exemption was not founded upon international law;
I might explain that the Department of Justice has expressed the opinion that the Governor-in-Council has the authority under the Privileges and Immunities (United Nations) Act to grant diplomatic privileges and immunities to representatives and senior officials of specialized agencies of the United Nations. It is doubtful whether this would be within federal competence and the question could be decided definitely only by our courts. It is most likely that if an unfortunate incident, involving an official of ICAO, occurred in Quebec and diplomatic immunity was pleaded in court, the Province would challenge the validity of our legislation. If the court decided it was ultra vires, it would be an unfortunate precedent;
(b) The United Kingdom does not grant diplomatic privileges and immunities to representatives of members of international organizations including specialized agencies of the United Nations. The United Kingdom Government draws a distinct line between privileges and immunities granted to diplomats and those extended to representatives of members of international organizations. The United Kingdom Government has passed what is known as the International Organizations (Immunities and Privileges) Act, 1950, which itemizes the specific privileges and immunities that may be given to representatives- of members and "high officers" of international organizations by order-in-council;
(c) The United States, in practice, does not grant diplomatic privileges and immunities to members of international organizations, as such. Article V, Section 15 (3) and (4) of the Headquarters Agreement between the United States and the United Nations provides for. the granting of diplomatic privileges and immunities to:
(1) the principal resident representative of a member if he has the rank of Ambassador or Minister Plenipotentiary, and
(2) other principal resident representatives and their staffs, if a three-party agreement is reached between the Principal Executive Officer of the organization, the United States Government and the government of the member country concerned.
The State Department has informed us that in practice no privileges and immunities under the above mentioned sub-sections have been or will likely be granted because,
(1) in most cases the representative on the specialized agency is his country's Ambassador or Minister to the United States. He is, therefore, already entitled to full diplomatic status, and
(2) in the case of other principal resident representatives and their staffs no three-party agreement has been or will likely be concluded because of the reluctance of the State Department to implement this part of the Agreement;
On the other hand, the granting of privileges and immunities to principal resident representatives of members of specialized agencies and their staff in the United States, is governed by the provisions of "International Organizations Immunities Act" (Public Law 291) under which law "... no person shall, by reason of the provisions of this title be considered as receiving diplomatic status or as receiving any of the privileges incident thereto other than such as are specifically set forth herein". (Section 8 (c)).
(d) According to Oppenheim, Hill1 and other authorities on international law, the present tendency in the United Nations, contrary to what was done in the League of Nations, is not to make any general grant of diplomatic privileges and immunities, but rather to limit and define the facilities which are necessary for the independent exercise of the functions of international organizations. Article 105 of the Charter of the United Nations and Section 14 of the Convention on Privileges and Immunities of the United Nations clearly provide that privileges and immunities are accorded to the representatives of members not for the personal benefit of the individuals themselves but in order to safeguard the independent exercise of the functions of the organization;
(e) In his letter to you dated June 27, 1950,† the Minister of Transport, referring to the diplomatic privileges and immunities that ICAO was requesting stated: "I do not think that we should alter our position". In other words, Mr. Chevrier felt as I do that these privileges and immunities should not be granted;
(f) Fifty-six countries are members of ICAO. If each country decided to send one or more representatives and diplomatic privileges and immunities were granted to each representative and his family, the total enjoying this status would be greater than the number in the diplomatic corps in Ottawa. Judging from press reaction to incidents involving diplomats in Canada during the last few years, it is doubtful whether public opinion would favour an extension of diplomatic privileges and immunities to such a large group;
(g) A diplomatic "carte blanche" to representatives on ICAO would likely lead to similar requests by other international organizations in Canada, now and in the ,future. Moreover, such a precedent might be one which other governments would not appreciate;
(h) If it becomes the universal custom to grant diplomatic privileges and immunities to representatives on international organizations, which are increasing in number, it would tend to detract from the importance and dignity which governments and the public attach to persons who are now entitled to enjoy these privileges and immunities.
4. Before deciding to refuse a general grant of diplomatic privileges and immunities the following factors should be taken into consideration:
(a) Agreements concluded between Switzerland and ILO and WHO provide that the Directors-General of these organizations, as well as officials designated by them and agreed to by the Swiss Government, shall enjoy the privileges and immunities granted to diplomatic envoys in Switzerland. Such privileges are not granted to representatives of member states, as such;
(b) An agreement between France and UNESCO provides -that senior officials of that organization shall have the same privileges and immunities as those enjoyed by diplomatic envoys in France. In its agreement with ICAO, France extends these same privileges and immunities to representatives of member states in that organization. A similar provision is contained in an agreement between Peru and ICAO;
(c) It is likely that another proposal will be made at the 1951 session of the Assembly of ICAO to have the organization's headquarters moved from Canada. Some members have indicated informally that they will insist on this. A Headquarters Agreement which is satisfactory to the members will be a strong factor influencing the outcome of such a proposal;
(d) Early in 1947, the Department informed ICAO that the Canadian Government granted, as an interim measure and on a de facto basis, to senior officials of ICAO "the privileges, immunities, exemptions, facilities and courtesies provided by federal law for diplomatic envoys". Such a provision could now be incorporated in the Headquarters Agreement, but it would be a formal admission, at least by implication, on the part of the federal government that its jurisdiction in this field was limited. For obvious reasons I do not think this is desirable.
5. If you agree that full diplomatic privileges and immunities should not be extended at the present time to representatives of ICAO, I have attached for your signature a letter to Dr. Warner† enclosing the government's commentary on the amendments recently proposed by ICAO and our seventh draft Headquarters Agreement which has been approved by the other departments concerned and which the Government would be prepared to sign.
1Voir/See Lassa Oppenheim, International Law: A Treatise, London and New York: Longmans, Green and Company, 1944 and 1947; Martin Hill, Immunities and Privileges of International Officials: The Experience of the League of Nations, Washington: Carnegie Endowment for International Peace, 1947.