UNiTED NATIONS
ECONOMIC AND
SOCIAL COUNCIL
E:CONm~IC Cm!~iIISSION POR AFRICA Commi tt2e of Nin...: 0..1 the
P:repara tory I'lork for the African Development Bank
Third session
Tur.is, 16-21 liarch 1964 Provisional agenda item 8
Distr.
LIMITED
E!CN.14!ADB!3 8 21 February 196,;
Original: ENG"::'
-
....
-., ./I \ . ' n~
THE HEADQUARTERS AGREEMENT OF THE AFRICAN DlYELOPMENT BANK AN OUTLINE OF ITS GUIDING PRll1CIPLES AND AN ANllOTATED
PRELlMlllARY DRAFT
.' ..
B/CN.14/ADB/38
THE HEADQJJARTERS AGREEIlENT OF JHE AFRICAlJ DEVELOPliENT BANK AN OUTLINE Or' ITS
cumrsc
PRINCIPLES l"JD At! Ai:nIOTATEDPRELIltITITARY DRAFT
(prepared by the Exeoutive Seoretary)
CONTENTS
Paragraphs I. llTTRODUCTION
II, auIDING PRINCIPLES
,!,he _li9-1e of the HeadquartE:rs.
Agreemen.t
Th.e. De9ision of the Head'ltl9-Tters
~.j;l1.e Dr"f.t Agreement
1 -
4
5 -
205 - 8 9 - 12 13 - 20
ElcN .141
ADB/38Preliminary Draft
••
DRAF'l' A0RJ.i11f,i,':, '1' J3ETHEEH THE AFRIC.AN DEVELOPMENT B.ANK ML TH,:J GOVERNMENT OF (TlIE lJOST STATE) REGARDING THEl'il.INCIPAL OF7ICliJ
or
Preamble
AFRIC.AN DEVELOPIlENT BANK
1. DEFn~IT ION
II. CmF1'ROL AND PROTECTION OF THE PRINCIPAL GrICE
III. ACCESS N,m RESIDENCE
IV. 00';mr:nCJ.TIONS, TRANSPORT, PUBLIC SERVICES Atw UTILITIES
V. FINA.'1CIAL FACILITIES .AND TAXATION
Articles 1
2 -
5
6
7 -
11 12 - 13 VI,' GOVERNORS 10TD IJl:ru,CTORS OF THE BANK ANDTHEIR .!'(/j,c:';!:'T",S, OHSR REPRESENTATIVES OF
lillMBER OCf,:2~_'Jl1JI':!1;'1-":J 14
VII, OFE'ICI',-'C' F::?'SllTS ilJ:!D CONSULT.ANTS OF THE
BJtNK
VIII. GEliS::tA.G PROVISIONS
IX. BTERPREil'A'UOH, APPLICATION, A.!VIENDMENT X. SET'l'LElit:811T O~' DISPUTES
XI. FINAL PROVJ8TONS
i.
15 - 19
20
21 - 24
25
26 - 27
E/CN.14/ADB/38
A B B REV _. ". ~ "1 n ~t
ADB Agreement
General Convention:
UN Headquarters Agreement:
Agencies Convention:
Agreement Establksaing the Afrioan Dcve L opment. T'J-'1~:..
Cc,nY"n-~_c;::. en the Privileges and Im"llL'lcioie,s of tcoe United Nations,
G.L-./l'C'~ ' .....1 ~:.1.1j Un..:..-t:JG. Nations General
Jc..u:'Jl
':J>
:',~ lI'ob:cuary 1946~Agr"':':,JI.:.~:.l~, 1'1("-' "'>"";_~ :'.;2.~~ Uni t ed Nations and
on, -:
i .•"Co:: 1 ;~~,.~,- ',08 O!' America r egazd :i.ng the H8:;'qt:,'~·,~C'te~s of the UnHv:_ 'TClt:_or "; cib1eJ on 26 June194'[.
Cc,nV9"-'''''.1 0:1 ':1' Privileges and
I:ii1m:.~:.~,~~':5_,~:' of ~~'C' 8:o'~v;iaJj.:"ed Agencies, app::'c -,:;,. _. u,," '", (.: C-~_, ~ t~-.:.. Nat ions General
j~8SC:-.~U~_", c., :. NO\.T"~·,;mbc:r 1947.
'.
UN Interim Headquarters Agreement :
In'-r;' ~
th,:.:. 1.:': ~.ted n.~,-+; :i_(;:-l~
S~&'~:0 (f _~::~':'..:..-i(;a,
D<j:)~_•.·!c"- .l '
1\/_'.?o.-::rn8nt between
and the United' signed on 18 FAO Agreement'
rCAO Agreement:
ECLA Agreement:
p...grc~.Y":;!1t bet\'[Qc~ the Italian Govern- ment ~l'_:J r,'"j ":";" c',Lrl A"'ricultural l-ri.',:::m'; ',-:;:LCH .\~~ ,:"''._,, Un ; ..cd Nations
r8sarl:'~I_ng~:'l0 :::I:}~'d.qllartera of that Or-gan , at i.o.. signed on 31 October
19500
AgrCCCYleC2-' 'Jc-:,·c::, +'Le International Ci1rj .J . ).,-.r';;--~";:)·1 (';-r.=::..::)·o"tion and the
c'~ '0"_'_,', c:__ '" ~',_;aIcling the
H<J:':,~,c.":,:'~ ,'" t.'J,"~~ O::gar.~_-at Lon ,
A,gr ~(..:- ' :.- '::!'o-'rernment of
Chile cx.::l "Gl~r~ l.-'1i'~ .' _::,.'Ji.18 Economio
CO!l1"]j_s~' ~c-.l <:', '.,-,: LJorica regulating Conait '0"8 fo" -- 0 C:cY're,tion in Chile of the ITs;'" _~:r- -;;00 Commission, sig'le,-,_ r.n 10 jh"C"U2..!''y 1953 •
.~.',
••
E/CN,141ADB/38
ECAF~ Agreement~
UNESCO Agreement:
ECA Agreement:
Agreement "between the United Naticns and the Gov8T:llrent of Iri'.3..il2l'lrl.
::c·eln.tjng to the IiGau.qy.t";,rters of t~e
~conomic COI:md ssiorl":vT' Ar,ia and. th e Far: ?·~S'L: .:.", 'r"l""·;l,,,·~..:1 ~i.rf"O~i ?6~ ":av
...' .uu, _._ .l ,-~._ _,"",,"J.\L~ '::>_t;r'J.'-' . , A ' . J
1954,
Agreement b;'3ti'r8Ql1 tlHc '7rGDr';~ Gevern- ment and thf' Un i t ed Nation;] Fduca- t ion[1.1, Seient ific and CuI tt',ra:
Organi 'ation regarding the Hsall'lt'a-l'te,~s
of UNESCO and. its Privileges and
ImIJIUnit ier:\ on French Territoa-y , signcc"L
2 July 1954.
Agreement "be tween the United. Nations and Eth'~o:pia regarding the Ee ad quart cr-n of the United Nations Eoonomic
Commission for Africa, signed on 18 June 1958,
iiit
Ii:/ClI.14/JillB/38
THE
HEAD"QUlL.'1.'1'I:RS AGREE1:EiT'j' OF TIlE AFIUCAlT DEVELOPllliHT BANK At'! OUTLTIlE OF ITS GUTIlTIlG PRINCIPLIi:Spm
Ail ANNOTATED PRELnmTARY DRAFI'(prepared by the Executive Secretary)
1. TIlTRODUCTION
1. Resolution 3 of the Conference of Finance ~inisters,* which
entrusted the Committee of Nine to carry out the "ork preparatory to the establishment of the African Development Bank, requested that Committee to draft, inter alia, a "Headquarters Agreement" for the JillB.
2. The Committee, at its first session held on 3 August 1963 in Khartoum, requested the Executive Secretary to colleot and assemble material and data related to Head~uarters agreements concluded in the oase of other international organisations and to outline some guiding prinoiples whioh oould be adopted by the Committee and to indicate the main contents which, on the basis of experience and i~ view of the charaoter of the African Development Bank, should form its Headquarters Agreement.
3. In compliance with this request, the Exeoutive Secretary .prepared a discussion paper (doc. E/CN.14/ADB/29) which the Committee of ~ine oonsidered at its second session, held from 14 to 18 December 1963 in Addis Ababa. At that session, it requested the Executive Secretary to prepare on the basis of the discussion paper and in the light of its deliberations the draft of a Headquarters Agreement for the 3ank.
* Resolution 3 on the Preparatory Work for the 0stablishment of the African Development Bank, adopted by the Ccnference at its final
plenary sessicn on 4 August 1963 at Khartoum.
E/CN.14/ADB/3R Page 2
4. The present papc-, +herefore, (a) outlines the part which a Head··
quarters Agreement will play within the general fr3mework of immunities, exemptions and privilege" of the African Development Bank; (b) sets out the principles that should govern its negotiation and ~ts basic r-ontents;
and (c), in its Annex, contains an annotated preliminary draft of a Headquarters Agreement for the ADB. (As comparee! vit h doc. E/CN.14/ADB/
29, paras, 5 to 12 have been revised and the remainder added to that document) •
II. GUIDING PRINCIPLES The Role of the Headguarters Agreement
5.
It should be recalled that the ADB Agreement itself endows the Bank - to enable it to fulfil its purpose and functions - with full international personality, with the power to enter into international agreements and with certain broac\ly-defined immunities, exemptions and privileges(Chapter VII, Articles 50 to 57). They relate, in particular, to, immuni ty from lege,1. process and executive and legi"lative action; to inviolability of its property, assets and archives; to freedom from financial restrictions, regulations or mo.r at ori a ; to "pe r aon aL" immuni- ties, exemptions and privileges for its Governors~ D~reotor9, their
ternates, and. the officials of the Bank; to exemption from taxation of emoluments paid. by the Bank; importantly, to exemption from taxation of obligations and securities issued by the ADB; etc. This status and these immunities, exemptions and privileges must be accorded to the Bank in the territory of each member (Article 50).
6. The international cbligation to accord such a regime to the Bank is imposed by the AnE Agreement on all member governments including the Hcst Government, because the operaticns and activities of the ADB may
in law, - and in practice in all likelihood will - extend to all member countries. If a supplementary agreement is required in the case of the Host Government, it is because physically the buildings and premises
•
B/er; .14/
ADB/3D Page .~constituting the ::o:'incipal office of the B&'1}: Hill operate there and from there; subst ant La.L funds of the ADB \fill be h e Id, man aged anc, d Ls poaed there; D'ir - o c to r - e ar.d thfJir Al te:r:-nates may r - es i.da 2~1l the m a na . g a m e nt and staff of the Bank tr i.L], resid.e there; and. Governorc and. their Alternates as "Hell as a La.rgc numbcz- of c onsu Lt ant s , e xp e.rt c and other official visitors b cth from r n e i n b er a n d non-membor c o u nt r i . es must have a cc es s to
the principe" office ar.d the possibility of tomporarily staying in the host c ountry , 'l'he s e factors, as "ell as other factors arising there-
Incumbant both for the Bank and the Host Government to
these factors in some detail so that the business of the from, make it
determine and defi,~18 their IT.utual rights and. obligat ions regarding all Bank may be organi:..:ed and tr-an s acc ed -.{itho1;.t Lec or hfnd rancc , the co-operation be- t\feen the management of the ADE and the ~lthoritie3 of the Host Government is smooth and fully effective and the Hoat Government is proteoted from abuse and undue interference wi.th the mainten an c e of In\f 'in3. oreler in its own territory,.
7", 'I'hi.s is best, done in &. Ee ad quorte r a Agreement as , for the sake of
brevi ty, an ';Agi'cem,,,"t "':'Gga,...,."jing th e Prin c ipi11 Of'f'Lc s of +,he ADB between the Host (Jov-arnment C.Ed -;;118 ADB" viill be called in this paper. Such an Agreement should take the relevant pr-ov Ls ron s of the Aj)B 4.er23fOent 3.S its basis and define, adju.st and d eve l.op then; in the light of the reQuire- ments of the Bank according to tho pattern of Hc ad quart ar-s Agreeme!1ts concluded in th.e ca~e of other international oz-gani.::o.tions ..
80 SUch existine Agreements covey subJects lik6 (a) oontrol anel
authority over the heaQQuartgrs; (b) maintenance of la\f and order therein;
(0) jurisdiction; (d) fjnancial f'aci Lit i.e s ; (8) c ormr.un i.c at i on s and trans- port; (r) access and r e s Id en c et (g) "ruleR c on c e rn Ing personal immunitie8, exemp t f.ou s and pl"ivileges; (h) tax exemptions; (i) public services, etc, In adelition, they deal "it'1 more technical raattcr s - machinez-y for
settlement of disputes, c on su ;tatLcn s bet~,reen -1:118 paxties, supp Lcment ar-y
agreements, definition of terms, etc. Special pr ov Le i.on is made, \fhere
E/m! .l4/
ADB/38 Page 4required, fur the intorim seat of tho Lrrt e rn a't i.on a.I or gan izati on concerned ..
It may be added that the basic instrument defining the immunities, exemp- tions, and priv11 eges in general MQ the Headquarters Agreement are,
wherever possible, treatecl as oomplementary and neither is permitted t o narrow do"~ the effect of the other.
9. The Bank, 80 the Prea!llble of the AJJB Agreement proclaims, is a
"financial insti tu.t ion common to all Afrioan c ountries119 it is being formed to strengthen African solidarity. It is in this spirit that the Host Government can be expected. to approach the problems that should be solved in the Eead quar-t e r s Agreement ~ 30n:e of the factors mentioned in this connection in para. 6 above imply advantages that the Host State may, directly er indirectly, derive economically from the presence of the Bank within its territory" This! teo) wili influence the attitude of the Host Government in the negotiation. Both the Host Government and the Bank will be aware that a denial of certain exemptions or privileges may not only Lmpai.f the efficiency of the latter in its general operations but result in an un in. ~8ndecl shift in the use of f'und s destined to serve the orderly d evc l o p m c nt and. social p r o gr-c s s of the Bank' s mernber-s ,
10. Indeed, GO ~ecisive and imperative appear these considerations that it may be argued;
(a) first, that in choosing the location for the principal office of the ~ank (Art. 39 (1)), the Board of Governors should take into acccunt, as one of its criteria, the readiness of the pr0spective Host Government, expressed ll1 illiequivocal terms, to apply forth- wi th (Art., 50) the relevant provis ions of the AJJB Agreement and to conclude with the Bank without undue delay a Headquarters Agree- ment according it immunities, exemptions and privileges in con- formivs Hi th the stand ards set by the Head quar-b er s Agreements of other lnterna+i0nal organisations; and, moreover
E/ClI.14/ADB/38 Page
5
(b) that, the Bank "being an African institution, the Host Govern- ment should be ready, in the Headquarters Agreement as well as in praotice, to extend to the Bank, its Governors, Directors, Prpsi- dents, staff members etc. all immuniti~~) exemptions and privileges which it accords to other international organ::_ations or its
officials and which the Bank may reasonably claim in order to ful- fil its purpose and f~~ctions.
11. In this connection it is perh&ps apyosite to reoall the basic
concepts on whioh the system of i~nunitie8, exemptions and privileges of the Bank must rest. They are granted, as the ADD reoords (Art. 59), in the interests of th~ :::""k not tho~o of 81Y pa~ticular memher or category of persons, It is the international personality of the Bank and ·its oharacter as an institution common to all Afrioan oountries
(Preamble, Arts. 38 and 50) whioh require that they must be recognised and respected by the authorities of the Host State irrespective of all political considerations which, at a~y given moment, may affect its
relations with a~y member or non-member State or international organiza~
tion.* The sale judge of its requirements, ~s far as immunities, exemp- tions and privileges that are provided for it are ooncerned, must be the Bank itself.
12. Yet neither this nor the guid.ing prInc LpLes for negotiation advanced in para. 10 above are intendoel to sugGest th2t, as a result, the Bank
should enjoy a one-sided regime of' pri"YileGe tending to interfere with
law and order or to affect adversely the social and economic conditions in the Hoet State. An e~anjnation of the oontents of the Draft Agreement reproduoed in the Annex he r-ot c \lill sh ov that it oombines a definition
* Thus, the UN HeadQuarters Agreement expressly lays do,m that its provisions concerning acoess to t~le UN Headquarters "shall be applicable
irrespective of' the i:1.3J..a·~l.UJ.U;; cx.i.stang be~ld0er1 tUIj Gu vernmsn ts of the persons referred to •••• and. the Government of the United States" (s.12).
E/CN.14/ADB/i3 Page 6
of the control e..::-d. ,--"l)_'~h( l'j'~Y of tho Bank e,ver its headquarters with a re-affirmation of '~be ?8spvnsibil::..ty of th8 Host Government for the maintenance of Latr anci ord s r tjE:r,,,,j.n,. EXC6P-~ as expz-e s s Iy provided,the laws of the Host E)t0-te c ont i.nuc -~o aP:'..Jly -,;:1,thin those h e ad quaz-t ez-a (Arts.
2 to 4). r h e C::::01111/ )":.i.O:1;:; l:L'OJ!l ill.;),:.C:;2:'at iC'r.. z e scr:tc,c':;,.OTI3 £U1Q. alien ree;istra- tion do not d Lcpo.. :;8 lTith th(~ need for the persons to vhom they apply, to show idantific2,'Lol1 ,:LOCUf",8'1ts (A::t. 6). Genet'ally, the Bank undertakes to co-operam fully ...{ith th~ 5.:J.thorit .JS of the Host State in order to
facilitate the ad,mi;1.i,Tel'2,tio:c o r justice and the observance of local law and to pr-event acuse (A:;:oIJ .. 2:))" I-~ must, lihe:.'e immunity of jurisdiction would impede the cour s o ot' juctie-o iCCO'" it is not c ontcary to its
interests, uaiv~ GUCll i\.~;\-~li·c;:,~ .i.n the caae of i-:;s QI,:n officials (Art. 19).
Finally, in 80:110 l'>0S~)eC-~S t.u e Ipers on a.L' exempti on and privileges cannot be claimed by 'che B2':'11: i.':1. "~:le case of it3 o.lficials ',jho are local nationa.ls
(Arts. 15 and 16)0
13. I t iG ill the lif",t of tD.8Se basic ccn sid'cr"tio'ls tbat the Dt'aft Agreement, r-eproduced in the A!mGx to ~,his ,~p8r, ','a8 prelJarod. The Draft follo,iO, in the ;;laLl, the cor,-,cspo'ldi,ng provision" in the head-
quarters agree:]8:rt8 of t:lv J~lited Hatj,~,:..;~.j F~~.OJ T'J.AO and UNESCO which are representative
0:
:~ ·"'(".(:v:..-,'.'~~·~::'~ s.2.:~.'e·'l::.e-(ltc 0:::" roc.st Interr a.tton a I organi2!a-the draf~ havo, u::' c(j'J.;:-,:":'-~) D€C.l ;.::;,::'jnstc.l -~Q "~bjfF3 of -ehe jl.jJB ./,greement and to the sp0cii.l.c J'cq,_,j~_J'-l(:;:l·~G of t~lC :Sd.i.l~;:_~
14. Thus, i-'c iG L'J'f:~:":""CG-:':. -~:12.":'; ul.r.c the rc~~rd of Governors takes its decision on "he lo,;~,t"o-CO£' trc Principc.I Office of tho Bank (ADB Agree- ment, Art. 39), 1Jo~h tho 1",)C' and the Ecsc Ccvernnont accept the Draft as a basic for neG'ot:i_a-:)~.l"l of a suitable EeadCj.uart2r8 A.gre0ment for the Bank.
y
i/
Cf. the B,'so1.ut!on c{uctec. 1,10 thB Preamble to the FAa Agreement.•
E/CN•14/ADB/36 Page
7
15. ilowevcr, L~ addition to any specific amendments to the Draft Agree ment that the Committe€. of £line or the Board of Governors m!.ght deem necessary , it m3,Y require further modification in the light of the eir-' cumstances in which the Principal Office of the Bank "ill ac t.ua.lLy be established and of the legal conditions l)revailing b the Eost State.
This raises three s et s of considerations"
16. First, if the site end buildings which are being offered for the permanent Principal Office of the .Bank are not irr~ediately available, the Bank will ha,e to establish a Temporary Principal Office either in the territory of the prospective Host State or in that of another Member- State. (Absence of immediately available facilitie, for the officials of the Bank may cr-eate a similar situationo) In such an event, the B"n~
should conclude "ith the Member Government conoerned an Interim ArranC0- ment regarding its Temporary Principal Office, which it is suggested should define that Office and declare that all the provisions of the Draft Agreement - l'ecogniaed as basis for negotiation of a cui t aoLe
Headquarters AbTeement for the Bank - shall have full force and effect with respect to the Temporary Principal Office excepting solely those prcvisionn which have a direot and exclusive bearing on the permanent Principal Ot'1"iC8.
Y
2uch an Tnterim Arrangement s h ouId be signed as soon as, with the consent of til·" Member Gover-nment concerned, the decision is taken to establish a Temporary Principal Office in its tel'ritory, and it should come into effect on the date of its signature and r-ena-in in effect until the Bank shall have ceased. to u ae ito Tem- porary Prinoipal Offioe.sfY
CF. UlJ Interim Headquarters Agreement, Art. II.£!
Ibidem, Art. IV; see also Inte"im Arrangement on FTivileges and Immunities of the United Nations, ccncluded between the WI Seoretary-General and the Swiss Felieral Council on 11 June/l July 1946, s. 28.E/CN .14/ADB/38 Page 8
17. Secondly, in pursuance of an offer made .- as it may be au rmi.sed - by the prospective H03t Governnent and accppted by the Bank, the latter
"ill acqui.r-e , for it" use .at least as long as its Prinoipal Office is located there, a certain Rite, buildings, structures and installations.
This transaction - which will form the ba"i.', for its decision to locate the Principal Office in the territory of the prospective Host State - will take the form of a legal Act (e. g. an aso ignment or 3 leasehold) distinct from the HeadCJ.uarter~Agreement. The Act will define the land, buildings, structures and installaticns concerned and the, nature of the rights of the Bank therein; it "ill determine the obligations of both partie3 - for instance, delivery of posse8sioni installation; expenses connected therewith;
maint~nanoe
and repair.lI
18. Henoe, thirdl¥, the final te~t of ,the HeadQuarters Agreement will be affected by the nature and detaib of the transaction by which the Bank will aCQuire the land, buildings etc. which "ill initially constitute its Principal Of'fLoe ,
Y
Similarly, certain par-ti.cu Lar-Lt Les of the legal system of the prospec-tive Ho~t State may reQuire further addition" or amenJ.i..enta to the Draft Ab-reement· in the course of negotiation - forL~stance, social seourity legislation; the legal position of the estate of an official of the Bank who dies in the Host State; rules as regards the registration of motor vehicla~ eta.
19. Suujeot to the c ono id er at.Lons set out in .par-as , 16 to 18 above and, of course, subject to any other modifications desired by the Committee of Nine or the Board of Governors, it i~ suggested that the draft instrument reproduced in the Annex to this paper should. form a basis
( ' r negotiation of a Eead.quart er-e, Agreement in th" s en s e that departure,'
from its text ~hould'be admitted only to the extent that they are
17
See, for instance, Supplemental Agreement to the Agreement between the International Atomio Energy Agency and the Republic of Austria Reparding the ileadQuarterr. of that Agency, signed on J June 1958.g;
Cf. for instance, FAa Agreement, ss. 2 to 4; second reoitals of the Preamble to, and Art. 2 of, the ~ZSCO Agreement.•
• •
•
E/8lT , 14/ADB/38 Page
9
required for tha smooth and €ffective working of
::cc;
Jubstantive pr-o- visions. It is in tho interact of the Ban~ that both parties to the negotiation should be fully aware of, and 1'01:;',,0;3. the ,;",;clbg pri:1ciples discussed In paras. 9 and. 10 above •20. Hence, i~ may,,,, envLaaged that bef'o rc the Board of Governors takes
--.--
i~s <".8ci":':1 on the location of' the Principal Office i.'1 conformity with Art. 39 of the ADD AgC:'cc0ment, it should ensure that the prospective Host Government declares that i t is ready and 1<illiJo.C to ~o'lclude with the Bank, 'Iithout undue delay, .in Agreement relating to its Principal OfL·-", whiLoh, ,s.Aallaccold. to the Bank immunities, exemptions and priYileges in conf'cz-md.ty "'.~r the standa.rd s set in the draft an st rument reproduced in the Annex (o r. para, 10 (8») above , I f this is the posi t i ort , 't'lrE!'
decision the Beare. of <1oyernors may desire to adopt could, rec13.lling the declarat ion:
(a) approve the said. draft instrument as a basis for negot iation of an Agreement "ith the Host Government regarding the Principal Offico of the 3ank'
(b) aocept, S-I,J::Jjev-:..- to the conclusion of :.3uch aT1 Agreement in conformity with the standards set in the 2o..i~ l:raf't instrument the offer tend8J.'"d,o the Bank by th e Eose Government, of a site in its territory for the establishment of +,11 ,: P::-:'1."ipal Office of the Bank; and
(c) request th3 President to negotiate such en Agreement accordingly and -co suum:'t l-'~ to the Board of Governors for ratification ..
1!
It may be added that iE accordance with ArL 32(b) of the ADB Agreement the Board of r.irclctors w~11 be consulted by the froshient in the course of the negotiations 1<ith the Host Gcvernment.
lJ
Cf , the Ro ao Iut i.on quoted in the Preamble to the FAO Agreement.E/CN.14/ADB/3 8 Page 10
Preamble PRELIMINARY DRAFT
DRAFT AGREEIlENT BETViEEF Hm AFRICAN DEVELOPlmNT BANIC ANTI THE GOVERNJIIENT OF (nIE hOST STATE) REG4!IDDTG THE PRINCIPAL
OFFICE OF THE AFRICAN DEVELOPIT2'i'r iil,.NY:
THE AFRICAN DEVELOPI.jElTT BANK AND THE GOVERN1IL:;;rT Ole (THE FOST STATE) CONSIDERING that the Board of Governors of the African Development Bank adopted at its first meGting, held in ~••.••.•• ' ..•.O • • '~ • •D • • • • ' . on
«,
•
...
.,.,..
1964, a decision to locate the Principal Office of that Bank in (the Host State);CONSIDERING that the Government of (the Host State has granted, and that the African Development Bank has accepted, by ~n Ac~ signed on .•... 1964, the permanent use and occupancy of the land, buildings, other structures and installations defined i" .•••< • • • • • • • • •
of that Act);
DESIROUS of regulation in the present Agreement Questions relating to the establishment of the Principal Office of the African Development Bank and to complete, adjust and develop in this respect the relevant provisions of the Agreement ';~stablishing the African Development Bank to which the Government of (the Host State) is a party; and
.'
"
E/CN.14/AIlB/38 Page 11
RECALLING that the African Develop:nent Bank is a financial institution common to all Afrioan countries;
HAVE AGREED as follows:
1. The Headquarter3 Agreement will be concluded by the B~ by virtue of its power, in order to enable it to fulfi; its
purpose and the functions with which, it is, entrusted, to "enter into agreements with members, non-member States and other
international organisations" (AIll3 Agreement, 1I;rt. 50). The
Headqu~rters Agreement does not come within the ca~egory of
"general agreements;/ the conclusion of which ~ be authorised by the Board of Governors in accordance with Art.29 (2) (c) of the AD] Agreement, though in view of its significance for the future of the Bank the Board cf Directors may desire to submit the Headquarters Agreement for approval to the Board of
Governors. The Headquarters Agreement should be signed by the President of the Bank as its legal representative (AoB Agreement,
; Art. 37' (3)'); see, in thl3 respect, the Final Clause.
2. In accordance with Art. 39 of the ADE Agreement, the English version of the Headquarters Agreement xefers, not to the
.
"Headquarters", but to the "J'rj,l}.".i~:). Office" of the Bank.
'I'hLa term - used by the IBRD and IJWB - is in :English more appropriate in the case of an international financial institu- tion; the terminological distinction does not exist in French.
3. The name of the !'lemb,!.,_ Stat,§. in vhcs e territory the Principal Office of the Bank will be loca~ed, will be substituted for the term "flost State" in the final. text of the Headquarters Agree- ment; the term is therefore put in brackets throughout the Draft _
E/CU .14/ADB/38 Page 12
4.
The decision to looate the Prinoipal Offico of the Bank in the Host State, referred to in the first recitals of the Preamble, will be taken by the Board of Governors in conformity with Art.39
of the ADB Agreement.5.(a) As regards the seoond reoitals of the Preamble, it is antioipated that, as happened in many preoodents of other international
organiaations, the Host Government will offer to the Bank by way of a grant, and the Bank will accept, the permanent use and .ocoupancy of certain land, buildings, structures and installa-
tions. The exaot legal nature and scnpe of the transaction not yet being known, the relevant part of the sooond recitals is put
in b.rackets ,
(b) It may be expected that the transaction will take the form of a spe~ific legal Act (e.g. an assignment or leasehold) whioh will
pr~vide that the grant will remain in foroe so long as the
Principal Offioe of the Bank is located on the land and in the buildings in Question, and determine the obligations of the parties concerned - such as maintenance and repairs - arising out of the grant (of., for instanoe, FAa Agreement, ss. 2 to
4;
seoond recitals of the Preamble to, and Art. 2 of, the UNESCO
Agreerpent ) ..
6.(a) The ADB Agreement endows the Bank with full juridical ~ersonality
and certain broadly-defined immunities, exemptions and priviliges Which, by virtue of its ratification, must be acoorded by the Host State to the Bank (Arts. 50 to 57, 24). The purpose of the Headquarters Agreement is therefore - as the third reoitals of the Preamble state - to complete, adjust and develop the
relevant provisions of the ADB Agreement as a consequence of the faot that the Principal Office of the Bank is located in the territory of the Host State, it is not to supersede the provisions of the ADB Agreement.
'.
•
- .
•
E/CN .14/ADB/38 Page 13
(b) This principle is expressly laid down. in Art. 2l of the Head- quarters Agreement which enjoins that the provisions of that Agreement a~d of the AnB Agreement should be treated as comple- mentary and that neither shall narrow the effect of the other.
Thus in the matter of immunities, exemptions and privileges the provisions of b oth Agreements must be read, and applied, in conjunction <lith each other. Indeed, certain matters - such as the legal status of the Bank in the Hest Stilte, immunity from legal process - are dealt with, at le~~t for the time being, solely in the AnTI Agreement (Arts. 51 and 52), the provisions of which are, of course, directly binding on the Host State,
(0) The position of the Bank, it may be recalled, is in this respect not unlike that of the United Nations (or, for that matter, of ECA, ECLA, or ECAFE) whose Headquarters Agreement is complemen- tary to the United Nations Charter (Arts. lO~ ani 105) and 'the General Convention (cf. UN Headquarters AbTeement, s.26; BCLA Agreement, s.20; ECAFE Agreement, s. 25; ~CA Agreement, s. 17).
7.
The fourth rec~tals of ~,O'Preamble racall the Preamble to the AnB Agreement which recognizes the Bank as a "financial institu- tion common to all African countries". The Bank being an African institution, the Host Government must be expectod, in the HeaJ- quarters Agreement as well as in its practice, to extend to it, its Governors, Directors, President, officials etc. al~ immuni- ties, exemptions and privileges which it accords to other inter- national 01' African organisations and which the Bank mayreasonably claim in crder to discharge its purpose and functions fully and. efficiently; see in this respect Arts. 15 (k ) and 24 of the Head quarters Agreement.
E/CN.14/AD B/ 38 Page 14
I. DEFllHTIONS
Article 1 In this Agreement the expression:
(a) "ADB Agreement" means the Agreement Establishing the African Development Bank;
(b) "appropriate authorities of (the Host State)" means such national, local Jr other authorities of (the Host State) as may be appr-cpr-Lat e in accordance ·"ith the laws of (the Host State) ;
(c) "Bank" means the African Development Bank;
(c.)
"Government" mean s the Government of (the Host State) i (e) "laws of (the Host State)" includes legislative, acts, decrees, regulations or orders issued by or under theauthority of the Government ;
(f) "officials of the Bank", unless the oontext of this Agreement provides otherwise, includes all officers, offioials,
employees and other staff members of the Bank with the exception of those recruited locally and assigned to hourly rate3;
(g) "Presid.ent" means President of the Bank;
s ,
•
•
•
E!CN.I4!ADB!38 Page 15' "
(h) "Principal Office", includesI
, (L) 'the hindkgether with the bU'iidingf3 ,and other structures ,and .insta11ations erected upon i1;,as dsfined. in the Act, signed on , 1964,
and referred to in the Pr eambLe to this Agre~ment;
and
(ii) any other land, bUildings, structures or instal1a- tions which. may be defined as being part of the
P~~~~ipal Office by a supplemental agreement between the Bank and the Government; and
(i) "representatives of governments" includes repre:3entatives, deputy representatives, advisers, technical experts and
secretaries of delegations from governments which are members of the Bank.
Notes
1. "ADB Agreement": As to its relationship to the Headquarters Agreement, see Note 6 to the Preamble.
2. As to the use of the term "Host Stato", oee Note .3 to the Preamble.
3. "Officials of the Bank": The ADB Agreement uses in its English text different expressions in this respect. The phrase "officers and staff" occurs in Arts. 4, 37 (2), 38 (2) and (3); "officers and employees" in Art. 56; "officers and other professional staff"
in Art. 57 (2); and "officials" in Art. 59; the terminology of the French text is more uniform. While for internal administrative
E/CN.14/ADB/38
Page 16
purposes such distinctions may be valid, the Headquarters Agreement proceeds from a uniform notion of "offioers" from which ollly staff members recruited locally and employed at hourly rates are exempt.
(This corresponds to the technique used, for instance, in the ECA Agreement Art. 1 (g)). It introduces, however, its own differen- tiation 'of offic'ials as regards their personal immunities, exemp- tions and privileges - cf. Arts. 15 (d) or 16 (3).
4. "Principal Offioe": This definition is designed to include the land, buildings, other structures and installations initially placed at the disposal of the Bank by the Bast Government as well as any subsequent additions thereto - see Note 5 to the Preamble and cf. FAO Agreement, s. 1 (f); ECA Agreement, s. 1 (f)).
E/CN.14/AIlB/38 Page 17
II. CONTROL AND PROTECTIOn OF THE PRINCIPAL OFFICE
Article 2
(1) The Prinoipal Offioe shall be inviolable ani shall be unier the oontrol and authority of the Bank, as provided in this Agreement.
(2) The Bank shall have the power to make regulations operative within the Principal Offioe for the purpose of establishing therein oonditions in all respeots neoessary for the oonduot of its activities.
(3) , Exoept as otherwise provided in the AIlB Agreement or in this Agreement, the laws of (the Host State) shall apply within the Prinoipal Office,
Notes
1. SeeADB Agreement, Arts. 50, 52 and 53; General Conv~ntion, s.3;
UN Head~uarters Agreement, ss.7 and 8; Agenoies Convention, s. 5;
FAO Agreement, s. 6; ICAO Agreement, s. 4; BCLA Agreement, s. 3;
ECAFE Agreement, s. 3; UNESCO Agreement, Art. 5; ECA Agreement, s , 2.
2. Artiole 2 of the Head~uartersAgreement develops, as regards the Prinoipal Office, the principles of the extraterritoriality of the Bank and the inviolability of its assets, whioh are, respec- tively, implicit in its internatiol1al personality and the
immunity of its assets for whioh the AIlB Agree@ent expressly provides (Arts. 50 and 53; as to the complementary nature of both
E/CN .14/ADB/38 Page J.8
Agreements, ceo Note quarters Agr;;;eme:lt }, Principal Office are
6 to the Pre amb.l e and ArL 21 of the Head- Consequently, control 21<1 C'.uthority over the vested in the Bank; the B2.~k has a limited power to make c"Ggulatiunsope.rative with:'n the Principal Office;
officers or cffi.cials of the Host State may enter that Office with the consent of the President of the Bank only; and the "ost State has the duty to pr-ot e ct that Office from disturbances and the Bank
from int"r:Cerence with its legal rights in respect of that Office (see Arts. 3 to 5 below).
3. Neither Article 2 nor the other provisions of the Headquarters Agreement are, however, designed to create for the Bank a one-
sided regime of pri7ilege tending to interfere with law and order in the Host State. 't'nus , control and authority are vested in the Bank "as prJ,-idl,(J. in this Agreement" .. not in an absolute f'onm , The power of the Bank to make regulations within the Principal Office, ac c oz'dod inJ..l1'f2_'_C£l of the Article, is limited by the provis7.on "he,t the oondi tLons whi.ch such regulations intend to establL h rnuet be "in
.§l,LJ"
respects ~.?sary" for the conduct of the activi(ieg of the Ba~k; they must not pursue other objectives - thUS, while c,,"~y r.lEeJ' relate to discipline Hithin +he precincts of.. the Principal Office, they could not, for -.netanc e , relate to tl:e registration of "irths; deaths and marriages.
4. The most important limitation to the principle th~t control and authority over the ~~inci~al Offioe is vested in the Bank is found in J2.aE.?~.()1of ArtLoLo 2 Hhich lays down; as a gem,ral proposition, that ths 1aHz of the Host State apply Hithin the Office except as otherwise pr-ovLded in the AIlB or Headquarters Agreements. This implies not only the application of the rules of substantive law of that Stato but also the jurisdiotion of its Courts (civil and
E/CH.14/ADB/38 Page 19
criminal),in all matters for which the ADB Agreement or the Head- quarters Agreement do not provide otherwise - e.g. for personal transactions of the officials of the Bank that happen to take place on its premises.
5.
Further important limitations to the same principle will be found in:- Art. 3 (2) of the Headquarters Agreement which imposes a duty on the Bank to prevent the Principal Office from becoming a refuge for offenders of the law, etc.;
- Art.
59
of the ADB Agreement and Art. 19 of the Headquarter8 Agreement which impose a duty on the Bank and the President to waive, in certain circumstances, personal immunities; and- Art. 20 of the Headquarters Agreement which enjoins the Bank to co-operate fully with the authorities of the Host Government in order to facilitate the administration of justice and the
observanoe of law and to prevent abuse.
E/ClL141ADB/38 Page 20
iu'ticle 3
(1) Office"G or ofiiclals of (the Host State) whether administrative,
jUdic~al, military or police, shall not enter the Principal Office tc perform any official duties therein except with the consent .and.
under conditions agreed to by the President.
(2) Without prejudice to tho provisions of the ADB Agreement or of this Agreeffient, the Bru1k shall prevent the Principal Office from becoming a refuge for persons who are avoiding arrest under any law of (the Host State) or who are :-equired by the Government for extradition to another State or
"'10
are endeavouring to avoid,service of legal process.
Notes
1. See ADB Agreement, iu'ts. 52 (2) and 53; UN Headquarters Agreement, s. 9; FAa Agreem6Dt, s. Ii rCAO Agreement, so 4; UNESCO Agreement, iu't. 6; ECA Agreement, s. 3,
2. This Article develops the principle of the inviolability of the Principal Office and the principle that it is under the control and authority of the Bank: cf. on this subject Notes 2 to 4 to iu'ticle 2. As to the definition of the Principal Office, see iu't.
1 (h) and Note 4 thereto.
3.
In pursuance of para. (1) of Article 3, the President of the Bank and the judiJial authorities of the Hcst State may be expected to agree on stand ing 'l.rrangementE ensuring the proper administra- tion of justice - e.g. as regards the service of process orE/CN.14/ADB/38 Page 21
exeoution of judgments; such arrangements will determine the oon- ditione under which judicial officers may enter the Principal Office. Similarly, arrangements should be made conoerning the entry of police officers - see Note 3 to Article 4.
4.
The duty of the Bank to prevent the Principal Office from becoming a refuge of offenders etc. must not prejudice its power to insist on the access to, and presence in, that Office of persons whose Governments m~ not be on friendly relation3 with the HOst Government - gee Art. 6 (2) and (4).E/CN.14/ADB/38 Page 22
A:t'ticle
4
(1) The appropriate authorities of (the Host State) shall exercise due d'ligence to ensure that the tranquility of the Principal Office is not disturbed by the unauthorised entry by any pereon or group of persons from outsido or by disturbance in its immediate vicinity, and shall cause to provide on the boundaries of the Principal Office such police proteotion as is required for these purpose".
(2) If so required by the President, the appropriate authorities of (the Host State) shall provide a sufficient number of police for the preservation of law ~ order in the Prinoipal Office, and for the removal therefrom of any person or group of persons as requested unde~ the authority of the President.
~o.:te..!!.
1. See UN Hesdquarterc Agrse~ent, s. 16; FAO Agreement, s. 8;
UNESCO Agrgement, Art.
I;
ECA Agreement, s.4.
2. The provisions of this Article are a development of the principle that '.. hile the Principal Orfi ce is inviolable and under the
oontrol and authority of the Bank the maintenance of law and order therein ultimately rests "ith the Host Government; see on the subject Notc.. 2 to 4 to 4rt'C}'.c 2. As to the definition of the Prinol11"':. Clf;sq. " '.." 'crt. 1 (h) and Note 4 thereto.
._--"'
E/CN.14/AJJB/38 Page 23
3. In pursuance cf Article 4 the President of the Bank and the local polioe authorities may be expected to agree on standing arrange- ments for the preservation of law and order in the Principal Offioe and its vicinity and the protection of that Office from disturbance. They will determine the conditions under which local police may enter the Prinoipal Office. - cf. Art.3 (1) and N0te 3 thereto.
E/CN.14/ADB/38 Page 24
Article 5
The Government shall take whatever action may be :required to ensure that the Bank shall not be dLepoe se a. ,' ,:Z H.J r';'c;L,'3 .;." t;,o Principal Office no~ deprived of the enjoyment of suc~ rights except with its express consent.
notes
1. See un Headquarters Agreement, ss. 3 and 22; FAa Agreement, s. 2 (b); UNE$UO Agreement, Ar". 3.
2. While Art.
4
deals with the right of the Bank to the protection of the Principal Offico from actual disturbance, Art. 5 deals with protection from interference with its legal rights and their use.Thus, the final wording of this Article will depend on the nature and scope of such rights whLch , it is expected, will be conferred on the Bank by the Act referred to in th~ Preamble and discussed in Note 5 thereto. As to the definition of the Principal Office, see p~t. 1 (h) and Note 4 thereto.
3. The term "dispossEissed" refers to acts as a result of which the Bank woul~ lose the rights or anyone of them ~ltogether; it would be "d e pr-Lved of the enjoyment" of suoh rights by a:'Y action Which, while falling short of dispossession, would reduce in law or faot
the scope or use of such rights.
•
~.
E/CN.14/ADB/38 Page 25
III. ACCESS A:NJl RESIDENCE
(1) The appropriate authorities of (the Host State) shall not impede in any way the transit to or from the Principal Office' of any person proceeding there to perform his official duties or at the invi ta- tion of the Bank.
(2) To this end, the Government shall authorise, without delay, the entry and residence in (the Host State), while they are engaged on business with the Bank, of:
(a) Governors of the Bank, their Alternates, and other representa- tives of member governments partioipating in the work of the Bank;
(b) Directors of the Bank and their Alternates;
(c) the President, "ice-PresideniBand other officials of the Bank;
(d) persons other than officials of the Bank performing missions for the Bank;
(e) other persons invited under the authority of the President to visit or to perform their duties.at the Principal Office; and (f) members of the family and personal employees of the persons-
referred to in sub-paragraphs (b) to (d) of this paragraph, while the latter are engaged On business with the Bank.
E/cn.14/ADB/38 Page 26
(3) Visas for pe r-conc ::,efe:::red to ill pa.ragru.ph (2) of this Article, where reQuired, shall be granted promptly and free of charge.
(4) The provisions of this Article shall apply irrespf'ctive of the relations existing between the governments of the pe rs ons referred
to in paragraph (2) of this Article and the Government of (the Host Stdte). No measure excluding or restricting the residence in (the Host State) of any such person shall be taken by its authorities wi thout p.ior consul ta tion cf the Minister for Foreign Affairs of (the Host State) with the President.
(5) The provisions of this Article shall not apply to general interrup- tions of transport. Nor shall they imply exem=,tion from the obliga- tion to produce reasonable evidence to establish that persons
olaiming the rights granted under this Article are included. in the categories specified in paragraph (2) thereof nor from the reason- able appl ica tion of Quarc,n tine and heal th regulations.
1. See UN HeadQuarters Agreement, sa , 11 to 14; FAa Agreement, 8.22;
ECLA Agreement, s.12; ECAFE Agreement, s.9; UnESCO Agreement, Art. 9; EGA Agreement, s. 9.
2. Unhind0red transit to and from the Principal Office (cf. definition in Art. 1 (h) and -Tote 4 thez-et o ) of all persons proceeding there on the Bank's business in its widest sense is essential if the
••
E/CN.14/ADB/38 Page 27
activities of the Bank are to be effectively organised and trans- aoted without let or hindrance. This implies not only (i) aocess to and egress from the Principal Office (para. (1) ), but also (ii) the right to enter, and scjcurn in, the territory of the Host
State (para. (2) ), as the first cannot be made effective without the second. On the other hand, the right to reside must be
granted by .the Host State only to the extent and for the duration reqUired by the business.of the person ooncerned with the Bank, in other words - as the beginning of para. (2) provides - solely for the purpose of the Bank's business. If that right is abused the authorities of the Host State may - as is enVisaged in para. (4), seoond sentence - take measures excluding or restricting the residence of the person concerned, though in such a case prior consultation between the President of the Bank and the Host Govern- ment at a high level is reqUired. The provisions of Article 6 are inspired by Art. 9 of the UlJESCO Agreement.
3. Aooording to para. (3) ,the authorities of the Host State may require a visa for entry of the persons enumerated in para. (2) but must grant it promptly and free of charge. In any event, they may require - under p~~ - at all times reasonable evidence that a person claiming rights under Art. 6 comes within one of the categories specified in para. (2).
4. The powers of the Bank under Article 6 must not be abused. It will be reoalled that the Bank, its President, Vice-Presidents and staff are enjoined not to interfere in the political affairs of any
member and that only economic considerations shall be relevant for their decisions (ADB ~greement, Art. 38 (2) ). On the other hand, the Host Government must fully respeot the international personal- ity and independence of the Bank (cf. Notes 2 to 4 to Art. 2) and apply the provisicns of Art. 6 irrespective of any political
E/CN.14/AD;S/38
Page 28
considerations and, in particular, irrespective of the relations eXisting between the Rost·Government and the government of the person concerned. The meaning of para. (4), first sentence (cf.
among others, United Nations Headquarters Agreement, s. 12), is that the Bank, an African institution, is the sole judge of the desirabili ty or need for any person to 'dve aCCeSS to its Princi- pal Office and that the authorities of the Host State should not attemnt to exercise that .judgment in its stead. Thus certain Headquarters Agreements specifically envisage - as indeed is
required in practice - that resident government representatives at their headquarters may include nationals of States which are not recognized by the host State (cf. United Nations Headquarters Agreement, s.15; Food and Agriculture Organization Agreement, s.
24 (b) ).
5. Para. (2) (c), As to "officials", see definition in Art. 1 (f) and Note 3 thereto.
Para. (2) (d)' includes experts and consultants of the Bank but may also include, for instance, experts and consultants of some other institution performing a (joint) mission for the Bank.
Para. (2) (e)' includes not only Occasional visitors but also, for instance, permanent representatives of other institutions acoredited to the Bank.
E/CN..l4/...ADB/ 38 Page 29
IV. CO~IT;U~~CATIONS, TRANSPORT, PUBLJC SERVICES
AIiD UTILI'J'IES Article
7
The Bank stall enjoy for its official communications treatment not less favourable than that accorded by the Government to any other govern- ment - including diplomatic missions of such other government - or to any other international or African organisation in the matter of
priorities and rates on mails, cables, telegrams, radiograms, telephotos, telephones and other communications; and press rates for information to press, radio or television.
Notes
1. See ADB Agreement, Art. 55, General Convention, s. 9, Agencies Convention, s. 11; FAG Agreement, s. 11; UlillSCO Agreement, Art.ln
(1); ECA Agreement, s. 5.
2. Arts. 7 to 11 of the Headquarters Aereement follow the general pattern of the corresponding provisions of other agreements of a similar ~ature. They are designed to give more detailed expression to the international persor.ality of the Bank (cf. ADB Agreement, Art.50, and Notes 2 to 4 to Art. 2 above) and to ensure the efficient operation of its Principal Office. In particular, Arts. 7 and 10 lay down in detail the obligations of the Host Government resulting from Art. 55 of the ADB Agreement. Such obligations must be interpreted, at any given time, in conformity with the existing international treaty law. On the other hand,the
E/CN.14/ADB/38
Page 30
Bank beir.g an African institution, the Host Government is expected to extend to its additional exemptions, privileges and facilities aGJorded by that Government to other international or African organisations' cf. Note 7 to the Preamble anQ Art. 24.
BieN
.141
ADB/38Page 31
(1) All.communicaticDR directed to the Bank, its Presid€nt, Vice- PresiQsnts a~d all officials at the Principal Office, and all out- ward official communications of the Bank, by >lhatever means or in
"hatever form transmitted, shall be immune from censorship and
f~om any other form of interception or interference. Such
immunity shall extend, without limitation by reaSon cf this enum- eration, to pUblications, documents, p~ans, blue-prints and
sketches, still and moving pi~tur"s, films and scund recordings.
(2) The Bank shall have the right to c3e codes and to despatch and reGei ve official cor-r-eapond enoe and, Iii thout Jtmi ta tion by r-eaaon of this er.ume.rati on , pubj.Lcat i oris , d ocumerrt s , plans, blue-prints and skstches, still c.nd moving pi0tu:cas, films and sound reoordings, ei thcr by couxier or in sealed bags "hi.cll shall have the same
imrnuni tics, 8:-:G:~pt~_onc and priYlleges as d ap.Loma t i c couriers and
bagso
(3) Nothing in this Article shall be construed to preclude the adoption
of appropriate pr€oaations, p"rticularly in the event of an emex- gency in the Hcst State, tc be determined by agreement between the Bank and the 00vernment and designed to prevent or avcid abuse of
the :immuni+,i'33, exerapttcne and priYil~ge£. :;;>rovided in this Article"
',lcN .141
ADB/38
Page 32
Notes
1. See ADB Agreement, Art. 35, General Convention, s.lO, Urrited Nations
HuadqY'"~ti)I'3 Agreement, Agencios Convention, s.12; FAO Agreement, s, D i UlffiSJO Afjl'Uo.ncnt; Art, 1'j; ECA Agreemont , a, 6,
2. As to the general nature of this Article, see Note 2 to Article
7.
It will be noted that the prohibition of censorship applies, as regards incoming communications, to all communications directed to the Bank or its officers and officials at the Principal Office, not at any other address. As regards outward mail, only official communications of the Bank are protected. Further,attention is drawn to the obligation of the Bank to agree on appropriate pre-
cautions designed to prevent abuse of the provisions of Art. 8; it is similar to its obligation to prevent the Principal Office from becoming a refuge for offenders of the law spe~ified in Art. 3 (2) and to its general obligation to co-operate with the authorities of the Host State under Art. 20.
E/CN.14/.AJJB/38 Page 33
Article 9
The Bank shall have the c-uthority to instal and operate at the Principal Office for its exclusivo official use a radio sending and receiving station or stations subject to the provisions of Article 44 of the International 'I'eLe comn.un ica tions Convention relating to harmful inter- ference. The fre~uencies on which any such station may be operated will be agreed between the Bank and the appropriate authorities of (the Host State) and will be duly communicated by the Bank to the International Frequency Registration BOard.
Notes
1. See ECAFE Agreement, s. 14; ECA Agreement, s.7.
2. As to the general nature of this Article, see Note 2 to Article 7.
3. Art. 44 oithe i"nternational 'l'eLeocmmuni catLon Convention, signed at Atlantic City on 2 October 1947 (UNTS, vol. 193, No. 2616), provides that all stations must be established and operated in such a manner as not to result in harmful interference to other radio services or ccm~unicaticns. It is the duty of each Member of the Int rnari cna'l Telecommunications Union to re~uire any operating agency r8~c~nis8dby it to observe this rule.
E/CN.14/ADB/38 Page 34
Article 10
(1) The Bank shall be entitled, for its official purposes, to use transp?rt operated by the Government at the rates and treatment·
not less favourable than that accorded to any other government .- inoluding diplomatio missions of such other government - or any other international or African organisation.
(2) Airoraft operated by or for the Bank shall be exempt from all charges, except those for actual services render€d, and from fees or taxes incidental to the landing at, parking On or taking. off from any aerodrome in (the Host State). Exoept as limited by the preceding sentence, nothing herein shall be construed as exempting such aircraft from full compliance with all rules and regulations governing the operation of flight into, Within, and out of the territory of (the Host State).
Notes
1. See United Nat~ons Hoadqua~tGrB Agreemr~t~ 6. 51 ECA Agreement, e. 8.
2. Ae to the general nature of this Article, partioularly important in view of the continent-wide responsibilities of the Bank, see Note 2 to Artiole 7.
,-
E/CN.14/ADB/38 Page 35
Article 11
The appropriate authorities of (the Host State) shall exercise, to the extent requested by the President, the poV/ere w~ich they possess with respect to the supply of public services to ensure that the Princi- pal Office shall be supplied on equitable terms wi th the necessary pub l Lo services, including electricity, water, post, telephone, telegraph,
transportatio~drainage,colleotion of refuse, fire protection et cetera.
In case of any interruption or threatened interruption of any suoh servioe, the appropriate authorities of (the Host State) will consider the needs of the Bank as being of equal importance with the similar needs of essential agencies of the Government, and ,:;;1 take steps accordingly, to ensure that the V/ork of the Bank is not prejudiced.
Notes
1. See Und to d ~!atj,on<J Headquarters Agreement, s.171 ECAFE Agreements, s.24;
ECA Agl'ee~ent , a , 16~
2. As to the general nature of this Article, see Note 2 to Art.
7.
3. The ECAFE Agreement provides, in addition, that the Host Oovernmen.
shall be responsible for all charges arising out of the installa- tions, maintenance and repair at the headquarters of all public services (s. 24 (b) ).
