unitex@rubbs.fidonet.org (unitex) (09/03/89)
had no special privileges and immunities, that article would not make sense;
it would be redundant, since you can only give up something that you have.
The representative of Thailand said that international law, State
practice, and various relevant conventions, supported the duty to observe
local law.
The CHAIRMAN said the language of the article was obligatory rather than
exhortatory. Diplomatic conventions provided for a duty, and were exhortatory
rather than obligatory. His interpretation was that the Enterprise would have
privileges that were quasi-diplomatic.
Article 39
Article 39 would provide for States parties to ensure that the Enterprise
enjoy all rights, privileges and immunities accorded by them to entities
conducting commercial activities in their territories, on a basis no less
favourable than that accorded to entities engaged in similar commercial
activities. If special privileges were to be provided by States parties for
developing States or their commercial entitites, the Enterprise would enjoy
those privileges on a similarly preferential basis.
The representative of India said that at some point the articles under
consideration would have to be harmonized with related matters being
considered in the plenary, which is currently considering the Headquarters
Agreement.
The CHAIRMAN said it might not be possible to harmonize those provisions,
since those working in the Enterprise might be in a different situation from
those connected with the Authority, and their immunities might therefore be
different. Some, for example, might enjoy "functional immunities" by virtue
of their position. But the matter could be looked at.
The representative of Senegal asked whether the provisions relating to
the Enterprise should be in a separate document or included in the overall
Headquarters Agreement.
The CHAIRMAN said that if the Enterprise was to function as a commercial
entity, it could not be treated in the same way as provided for under the
Headquarters Agreement. There should be a separate agreement between the
States where the Enterprise established its headquarters and those States
where it established sub-offices. The matter should be further considered at
a second reading, he said, adding that the formal plenary was the place for
harmonizing such matters.
The representative of Pakistan said that, with the Authority or the
Tribunal, it was diplomatic privileges that were being considered. People
working at the Enterprise were simply employees of a firm having offices in
various countries. Like any multinational, they should negotiate certain
terms with the State concerned. There was no need to lay down special
privileges and immunities for that situation. Article 39 simply provided a
basic understanding.
The representative of India said the Enterprise was neither purely a
commercial organization nor an international body, to which diplomatic
privileges applied. If it was purely commercial, the entire section on
privileges and immunities would lose its significance. But the Enterprise was
in a unique category. For example, a purely commercial venture could
establish its headquarters anywhere, according to its needs, but the seat of
the Enterprise had to be where the Authority was established. The Enterprise
must therefore have certain privileges that were not available to purely
commercial ventures. He suggested considering the results of the plenary's
debate on the question before returning to consideration of the matters in
Commission 2.
The CHAIRMAN said the matter should be considered further. He agreed
with India that the Enterprise was a hybrid, a multinational entity bound by
the rules not limiting other commercial ventures.
The representative of Thailand said that the views of Jamaica, the host
country, also needed to be considered on this matter.
The CHAIRMAN said he could discuss the matter with the Chairman of the
plenary and with the representative of Jamaica.
Article 40
Under article 40 States parties might provide special incentives, rights,
privileges and immunities to the Enterprise without the obligation to make
such benefits available to other commercial entities.
Article 41
Article 41 would provide for the Enterprise to negotiate with the host
country for exemption from direct and indirect taxation.
Article 42
Under article 42 the Enterprise might waive any of the privileges and
immunities conferred upon it under this section, to such an extent and in such
conditions as it might determine.
Article 43
Article 43 would provide that, if the Enterprise lacked the goods and
services it needed, it might procure them. For that purpose, it could award
contracts to bidders offering the best combination of quality, delivery and
other factors. It would provide guidelines for deciding between comparable
bids, and empower the Governing Board to make rules determining when the
Enterprise might dispense with the requirement of competitive bidding.
* Origin: UNITEX --> Toward a United Species (1:107/501)
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Patt Haring | UNITEX : United Nations
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