European Space Agency Privileges and Immunities Order: SOR/2019-181
Canada Gazette, Part II, Volume 153, Number 12
SOR/2019-181 June 3, 2019
FOREIGN MISSIONS AND INTERNATIONAL ORGANIZATIONS ACT
P.C. 2019-618 May 31, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs and the Minister of Finance, pursuant to section 5 footnote a of the Foreign Missions and International Organizations Act footnote b, makes the annexed European Space Agency Privileges and Immunities Order.
European Space Agency Privileges and Immunities Order
1 The following definitions apply in this Order.
- Agreement means the Cooperation Agreement Between the Government of Canada and the European Space Agency, done at Paris on February 12, 2019. (Accord)
- Convention means the Convention on the Privileges and Immunities of the United Nations set out in Schedule III to the Foreign Missions and International Organizations Act. (Convention)
- Organization means the European Space Agency. (Organisation)
Privileges and Immunities
2 (1) The Organization has the legal capacities of a body corporate.
(2) The Organization has, to the extent set out in paragraph 2 of Article X of the Agreement, the privileges and immunities set out in Articles II and III of the Convention.
Representatives of Member States
(3) The representatives of the Member States of the Organization have, to the extent set out in paragraph 5 of Article X of the Agreement, the privileges and immunities set out in Article IV of the Convention. These privileges and immunities are accorded for the purpose of safeguarding the independent exercise of the representatives’ functions in connection with the Organization and not for the personal benefit of the representatives.
(4) The officials of the Organization that are referred to in paragraph 3 of Article X of the Agreement have, to the extent set out in that paragraph, the privileges and immunities set out in Article V of the Convention. These privileges and immunities are accorded in the interest of the Organization and not for the personal benefit of the officials.
3 The European Space Agency Privileges Order footnote 1 is repealed.
Coming into Force
4 This Order comes into force on the day on which the Cooperation Agreement Between the Government of Canada and the European Space Agency, done at Paris on February 12, 2019, enters into force.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The European Space Agency (“ESA”) is an international organization and is Europe’s primary access to space. Canada and ESA are longstanding partners and have been formally collaborating since 1979 through a treaty-level Cooperation Agreement between the Government of Canada and the European Space Agency (the “Agreement”), which has been renewed five times (1984, 1989, 2000, 2012 and 2019).
The Agreement enables Canada’s participation in ESA programs. This provides significant benefits for Canadians, including: advancements for Canadian science and technology; space flight opportunities to test and prove Canadian technology in space; and market access to Europe.
Pursuant to the 2019 renewed Agreement (the “renewed Agreement”), Canada has committed to providing ESA with broader privileges and immunities.
To implement Canada’s treaty obligations related to privileges and immunities under the renewed Agreement.
The European Space Agency Privileges and Immunities Order (“new Order”) repeals and replaces the European Space Agency Privileges Order (“previous Order”). All provisions of the previous Order are retained, e.g.:
- ESA has, to such extent as may be required for the performance of its functions, the legal capacity of a body corporate. This includes the capacity to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings.
- ESA is, to such extent as may be required for the performance of its functions, exempt from all direct taxes, as well as from customs duties and prohibitions and restrictions in respect of articles imported or exported for official use.
- Officials of ESA, to such extent as may be required for the performance of their functions, are exempt from taxation on the salaries and other related compensation paid to them by ESA. However, tax relief is not provided to officials who are Canadian citizens residing or ordinarily resident in Canada.
The new Order also provides additional privileges and immunities, e.g.:
- to such extent as may be required for the performance of its functions, immunity from legal process for ESA, its property and its assets; inviolability (i.e. protection) of ESA’s premises, archives, and documents; and the ability of ESA to hold funds, gold or currency, operate accounts in any currency, and transfer such funds.
- for its official communications, to such extent as may be required for the performance of its functions, treatment no less favourable than that accorded to other countries, including diplomatic missions (e.g. rates and taxes on its communications); no censorship will be applied to ESA’s official correspondence and other communications; and correspondence sent by courier or in bags will have the same privileges and immunities as diplomatic couriers and bags.
To ESA Officials:
- to such extent as may be required for the performance of their functions, immunity from legal process for words spoken or written and all acts performed by them in their official capacity and an exemption from immigration restrictions for officials and their spouses and dependents. Officials also have the right to import free of duty their furniture and effects at the time of first taking up their post in Canada. However, duty or tax relief privileges are not provided to officials who are Canadian citizens residing or ordinarily resident in Canada.
To Representatives of ESA Member States:
- to such extent as may be required for the performance of their functions in respect of the mandate of ESA, immunity from legal process for words spoken or written and all acts performed by them in their official capacity; immunity from personal arrest or detention and from seizure of their personal baggage; inviolability (i.e. protection) of their papers and documents; and an exemption from immigration restrictions for representatives and their spouses.
The new Order was not pre-published given that it implements Canada’s broader privileges and immunities obligations in respect of ESA in the renewed Agreement.
In 2015 and 2018, the Canadian Space Agency consulted the Canadian space sector on the Agreement through an independent evaluation of Canada’s involvement in ESA. These consultations concluded that industry and academia support the renewal of the Agreement (which includes a section on privileges and immunities) as it directly contributes to their ability to remain competitive domestically and internationally.
Modern treaty obligations and Indigenous engagement and consultation
The new Order does not have an impact on modern treaty obligations. This initiative does not take place in modern treaty regions.
The new Order is made pursuant to subsections 5(1) and (2) of Part II of the Foreign Mission and International Organizations Act, which is the only instrument that is available to grant privileges and immunities to international organizations.
Costs and benefits
In addition to ensuring compliance with international treaty obligations, the new Order provides assurance to ESA, ESA officials, and representatives of ESA member states of their available privileges and immunities, as well as ensures that ESA can adequately carry out its functions in Canada.
The exemption from immigration restrictions is provided to facilitate travel to Canada. While it does not replace the need for a visa where one is required, it could facilitate admission to Canada of an individual even if that individual was not otherwise admissible.
The privileges and immunities are provided to officials and representatives of ESA member states not for the personal benefit of the individuals themselves but rather to enable them to carry out their functions in relation to ESA. Accordingly, as specified in the renewed Agreement, the privileges and immunities of both ESA officials and representatives of ESA member states may be waived. For ESA officials, they may be waived by the Director General of ESA. For representatives of member states, they may be waived by the member state.
The new Order does not generate any material costs for government, industry, consumers, or Canadians. The costs, if any, to the government through the tax and duty-related privileges are insignificant.
Small business lens
The small business lens does not apply. There are no costs on small business and small businesses would not be affected.
The “One-for-One” Rule does not apply, as there is no change in administrative costs to businesses.
Regulatory cooperation and alignment
The new Order does not affect Canada’s engagement in existing formal regulatory cooperation initiatives. It implements Canada’s treaty obligations in the renewed Agreement to provide broader privileges and immunities to ESA, ESA officials, and representatives of ESA member states.
Strategic environmental assessment
In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a screening concluded that the potential for important environmental effects, positive or negative, is unlikely as a result of proposal implementation. No further assessment is required.
Gender-based analysis plus
Gender-based analysis plus (GBA+) impacts have been considered in relation to the making of the new Order and no impacts have been identified.
Implementation, compliance and enforcement, and service standards
This new Order comes into force on the day on which the renewed Agreement enters into force.
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