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Cablegate: Psi Shipboarding Agreement Negotiations With

VZCZCXYZ0000
RR RUEHWEB

DE RUEHC #2521 0882222
ZNR UUUUU ZZH
R 282215Z MAR 08
FM SECSTATE WASHDC
TO RUEHKV/AMEMBASSY KYIV 0000
INFO RUEKJCS/SECDEF WASHINGTON DC//USDP/OGC//
RUEKJCS/SECDEF WASHINGTON DC
RHMFISS/JOINT STAFF WASHINGTON DC//LC/J-5//
RHMFISS/JOINT STAFF WASHINGTON DC
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC//CRIM-NDDS//
RULSJGA/COMDT COAST GUARD WASHINGTON DC//G-LMI//

UNCLAS STATE 032521

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: KNNP KTIA PHSA PARM PREL EWWT UP
SUBJECT: PSI SHIPBOARDING AGREEMENT NEGOTIATIONS WITH
UKRAINE, FEB. 13, 2008 - DELEGATION REPORT

REF: A. 05 KYIV 04998
B. 07 KYIV 00513
C. 07 STATE 161772

1. Summary: U.S. and Ukrainian negotiating teams discussed
the major areas of disagreement regarding the draft
Proliferation Security Initiative (PSI) shipboarding
agreement during a second round of talks in Washington, DC on
February 13, 2008. Major issues identified for near-term
follow-up include the following:
(a) whether Ukraine may authorize access to cargo sealed
under the customs authority of a third party in view of
perceived Ukrainian international and domestic obligations
and customs maintenance regimes;
(b) whether the U.S. and Ukraine can reach mutually
acceptable guidelines for the use of force during boarding
operations consistent with the domestic laws of both
countries;
(c) whether Ukraine will be amenable to including the
exclusive economic zone (EEZ) of both countries in the
geographic scope of the PSI shipboarding agreement; and
(d) whether a side letter describing claims procedures would
be useful in documenting the understanding of both Parties.
In addition, the U.S. committed to develop a table-top
exercise to assist both countries in understanding how the
agreement would work in practice, and to provide sample
request forms as potential attachments to the agreement.
Both delegations judged the meeting very useful in enhancing
understanding and bringing the two countries' positions
closer together. End Summary.

2. The U.S. had provided Ukraine with a proposed text of a
bilateral PSI shipboarding agreement in early 2005. The
first round of negotiations was held in Kyiv in December 2005
(ref A). In early 2007, the U.S. received a Ukrainian
counter-draft (ref B). The U.S. review of the counter-draft
raised a number of questions and concerns. Fifteen key U.S.
concerns were conveyed to the Ukrainian side in late 2007
(ref C). Ukraine provided informal interim responses in late
January 2008. The purpose of the February 13, 2008 meeting
was to gain a better understanding of the perceived legal and
language barriers accounting for the majority of the numerous
expressed concerns.

-----------------------------
STANDARD FOR "SUSPECT VESSEL"
-----------------------------

3. The Ukrainian and U.S. negotiating teams discussed the
definition of "suspect vessel" as proposed by the U.S. in the
PSI shipboarding agreement text and subsequently modified by
Ukraine. The standard to determine whether a
vessel is "suspect" in the UN Convention on the Law of the
Sea is whether there are "reasonable grounds to suspect"
illegal activities are taking place on the vessel. Ukraine
proposed a standard of "objective facts to
confirm" a vessel is engaged in suspect activities. The U.S.
explained the standards for what is "reasonable," emphasized
the requesting Party's need to maintain credibility in the
international community, highlighted
the flag state's right to permit or deny boarding, and
provided examples of indicators considered by the U.S. in
determining whether it has reasonable grounds to suspect a
vessel to be engaged in suspect activities. These
examples and explanations appeared to reduce Ukrainian
concerns that Ukrainian flag vessels might be subjected to
search upon a chance encounter.

4. The U.S. also noted that this definition was not the
appropriate place for the exemption of warships and vessels
on government service, to which the Ukrainians seemed
amenable as long as the exemption was clearly stated in the
agreement.

------------------------------------
DEFINITION OF "INTERNATIONAL WATERS"
------------------------------------

5. Ukraine's proposal limited the scope of the PSI
shipboarding agreement by defining "international waters" to
exclude the exclusive economic zone (EEZ). During the
meeting, Ukraine proposed excluding only the U.S. and
Ukrainian EEZs from the PSI shipboarding agreement. The U.S.
explained that such an exclusion is inconsistent with the law
of the sea and cannot be part of such an agreement because it
would be perceived as legitimizing the excessive territorial
claims of other countries. Following lengthy discussions,
the Ukrainians decided they needed further internal
consultations on the definition of "international waters" for
purposes of this agreement.

----------------------------
SCOPE OF AGREEMENT AND CARGO
----------------------------

6. Due to restrictions contained in Ukrainian domestic
customs maintenance laws, Ukraine considers itself unable to
authorize the opening of cargo boxes or containers on
Ukrainian flagged vessels if the cargo was sealed by
authorities in another country. Liability concerns were also
raised. The U.S. noted that U.S. law allows opening and
search of any cargo on a U.S. ship or in U.S. waters. The
U.S. explained that inspection of sealed containers on
container ships is not contemplated during an at-sea boarding
under the PSI shipboarding agreement due to logistical
challenges. Ukraine promised to consult further with its
customs attorneys and to review existing Ukrainian laws. For
its part, the U.S. proposed to build customs scenarios into a
practical training exercise for Ukraine, along with
references to appropriate authorities to demonstrate how the
PSI shipboarding agreement would function and how claims
would be processed.

--------------------------------------------- ---------
COOPERATION "SUBJECT TO THE AVAILABILITY OF RESOURCES"
--------------------------------------------- ---------

7. Ukraine expressed concern over the U.S.-proposed language
in the PSI shipboarding agreement that limits the parties'
commitment to cooperation "subject to the availability of
resources." For instance, Ukraine was
concerned it would be exploited as a loophole to circumvent
the process set forth in the PSI shipboarding agreement if
technical communication modes failed or were otherwise
unavailable. The U.S. assured Ukraine that the
language was included not as a means to circumvent the
process but, rather, based on the fact that the U.S. cannot
commit funds absent the authority to spend pursuant to an
appropriation from Congress. Ukraine stated that,
for it, this concept was captured in the phrase "in
accordance with national legislation." The U.S. suggested
replacing the ambiguous language with the term "within the
means available" as contained in the 2005 Protocol to the
Convention on the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA), and also offered to
clarify in Article 4 that the approval process may not be
circumvented.

---------------------------
VESSELS WITHOUT NATIONALITY
---------------------------

8. The U.S. proposed language in the PSI shipboarding
agreement noting the authority of warships to board and
inspect vessels without nationality consistent with Article
110 of the Law of the Sea Convention. Ukraine was concerned
about potential claims against it by third parties boarded by
the U.S. on grounds that the vessel was without nationality.
Ukraine was also concerned about being subjected to potential
claims if Ukraine was unable to confirm the nationality of
its own vessel and the U.S. subsequently boarded the vessel
as stateless. The U.S. directed Ukraine to the claims
provisions contained in Article 12 of the PSI shipboarding
agreement. The U.S. also pointed out that the text proposed
by Ukraine in Article 4, paragraph 2.3 necessitated including
the authority of warships to board stateless vessels in the
PSI shipboarding agreement. Ukraine expressed openness to
including text stating that the PSI shipboarding agreement
does not preclude either Party from exercising its authority
consistent
with the Law of the Sea Convention. As an alternative,
Ukraine suggested including provisions on stateless vessels
in a separate article. The U.S. urged Ukraine to agree to
keep all text related to the scope of the agreement in
Article 3, and to agree to the U.S.-proposed procedures for
boarding stateless vessels in Article 4, paragraph 4.

-------------------------
TWO-STEP APPROVAL PROCESS
-------------------------

9. The PSI shipboarding agreement as edited by Ukraine would
require a two-step process: (1) for a Party to confirm
registry of a vessel; and (2) after registration is
confirmed, for a Party to agree to a request to board the
vessel. Ukraine would be comfortable with a process allowing
for a single request both to verify registry and board a
vessel, as long as the U.S. understood that Ukraine may
respond to such requests in two phases. The U.S. agreed to

this procedure. Ukraine also expressed concern that
information in request or reply forms might be disclosed to
third parties. The U.S. reminded Ukraine that the
information would be exchanged between the designated
Competent Authority of each Party and offered to provide
Ukraine with sample request forms to alleviate such concerns.
The U.S. provided Ukraine with sample forms on February 14,
2008. NOTE: Department is preparing bilingual forms that
can be filled in on a computer rather than by hand. END
NOTE.

-------------------------------------------
COMPENSATION FOR BOARDING STATELESS VESSELS
-------------------------------------------

10. The U.S. was unable to accept Ukraine's proposed text
regarding claims made by vessels boarded as stateless
vessels, as discussed above in paragraph 8 of this cable.
Ukraine agreed to removal of its proposed Article 4,
paragraph 2.3 as long as Article 4, paragraph 1 contained
language requiring the Parties to act towards stateless
vessels consistent with the law of the sea, thereby
protecting the interests of vessels whose Ukrainian registry
was not confirmed until after the fact. Ukraine's concern
was not to be held responsible for actions taken toward
vessels not under the Ukrainian flag.

-----------------
REFUSAL OF MASTER
-----------------

11. The text of the PSI shipboarding agreement as proposed
by Ukraine would permit the master of a vessel to deny a
Party from boarding, even when the flag State consented to
the boarding. The U.S. stated it would not agree to language
that allows the master of a vessel to deny a boarding.
Ukraine was concerned about potential liability of a master,
which the U.S. suggested should not be a concern as long as
the master was not knowledgeable of the illegal cargo.
Ukraine explained that under its domestic law, a Captain of a
Ukrainian flagged vessel has discretion to deny a boarding
outside territorial waters, except for matters related to law
enforcement or customs. Ukraine therefore believed it could
agree to remove the provision, since the PSI shipboarding
agreement related to law enforcement and would become law
upon entry into force.

-----------------------
JURISDICTION AND WAIVER
-----------------------

12. The U.S. and Ukraine agreed conceptually to the
possibility of a waiver of jurisdiction as stated in the
U.S.-proposed Article 5 on Jurisdiction over Detained
Vessels. The teams discussed the distinction between
"primary right of jurisdiction" and "exclusive jurisdiction,"
which was not clear to Ukraine. The U.S. agreed that
Ukraine's proposed Article 11, paragraph 2 on release of a
suspect vessel was the flag state's right.

------------
USE OF FORCE
------------

13. Ukraine took significant issue with the U.S.-proposed
Article 9 of the PSI shipboarding agreement setting forth
standards for the use of force during boarding and search of
suspect vessels. Ukraine proposed detailed provisions
consistent with its domestic law, with the expectation that
U.S. law enforcement officers would comply with Ukrainian
domestic laws and regulations on Ukrainian flag vessels. The
U.S. opposed the expectation that law enforcement officers of
either Party be required to conduct their boarding operations
in accordance with the laws of the other Party. The U.S.
provided Ukraine with copies of Chapter 4 of the U.S. Coast
Guard Maritime Law Enforcement Manual (Coast Guard Use of
Force Policy). Lawyers for the U.S. and Ukrainian negotiating
teams committed to compare the laws and regulations for each
country regarding the use of force and consider the viability
of drafting a common use of force policy.

----------------------------------------
EXCHANGE OF INFORMATION ON NATIONAL LAWS
----------------------------------------

14. Ukraine found it inconsistent to require knowledge of
flag State laws without also imposing an obligation that the
Parties abide by such laws. The U.S. explained the inherent
impossibility of requiring law enforcement officers of one
Party to comply with laws of the other Party. The U.S.
pointed out that the safeguards contained in Article 8 and
international law protect against abuses by law enforcement
agents and that an exchange of information on national laws
is necessary to align expectations of the Parties and their
law enforcement agents in the execution of this agreement.
As discussed in paragraph 13 above, the U.S. suggested that
both Parties take a closer look at their domestic laws,
particularly with regard to the use of force. If the laws
for both countries are sufficiently consistent with one
another, the Parties could consider including text acceptable
to both sides.

------
CLAIMS
------

15. Ukraine proposed imposing the law of the flag State to
resolve claims from third parties. The U.S. was unable to
accept this proposal and explained how the U.S. processes and
pays claims by foreign nationals. The U.S. also provided
Ukraine with a written explanation of U.S. claims laws and
procedures to review. Ukraine will review the letter to
determine if such a letter could resolve Ukraine's concerns.
NOTE: This explanation has been translated into Ukrainian and
provided to the Ukrainian Embassy. END NOTE.

------------------------
DISPUTES AND ARBITRATION
------------------------

16. Ukraine proposed that any disputes surrounding the PSI
shipboarding agreement be resolved through arbitration, and
urged the U.S. to allow for arbitration in its domestic law.
The U.S. explained it is unable to commit to arbitration for
resolution of disputes in agreements of this type, and cannot
use this agreement to change U.S. law because it is not
subject to legislative approval. Ukraine warned the
agreement would be very difficult to ratify if it stated that
claims and disputes must be handled according to the U.S.
court system. The U.S. agreed that another state also could
raise disputes with it via diplomatic channels.

---------------------------------
NOT PREJUDICING INTERNATIONAL LAW
---------------------------------

17. Ukraine bracketed U.S.-proposed language (U.S.-proposed
Article 14, subparagraph b) stating that the agreement would
not prejudice the position of either Party with regard to
international law or territorial or maritime boundaries.
Since the U.S. had included the provision in view of existing
maritime claims by Ukraine in the Black Sea, the U.S. agreed
to delete the provision given Ukraine's objection to it.

--------------------------
COOPERATION AND ASSISTANCE
--------------------------

18. Ukraine had bracketed the U.S.-proposed text on
cooperation in providing technical assistance. The U.S.
explained the potential benefit of the provision. Ukraine
dropped its objection in principle, but was not able to
decide whether the provision should refer to the "Competent
Authorities" or the "Parties." The Ukrainian delegation
needed to consult with other experts and study the provision
further.

-------
COMMENT
-------

19. The U.S. Government appreciates the careful review by
Ukrainian agencies and departments of the draft PSI
shipboarding agreement. U.S. agencies and departments have
given similarly careful review to Ukraine's proposed draft
dated January 26, 2007. The meeting on February 13, 2008 was
productive in resolving a number of misunderstandings and
communicating to Ukraine that many of its revisions are
acceptable to the United States.

20. There remain certain revisions and additions proposed by
Ukraine, however, that attempt to change the intended scope
of this agreement, or that are inconsistent with what the
U.S. Government may commit to in such agreements. The U.S.
will strive to work with Ukraine to review the relevant
domestic laws of both Parties in order to reach mutually
acceptable language on use of force standards during
boardings as well as the processing of claims. Ukraine has
agreed to investigate further any restrictions based on its
customs maintenance law and, if necessary, to seek changes to
its domestic laws.

21. (U) Delegations:

-- U.S. delegation:
J. Ashley Roach, State/L-OES
CDR Vida Antolin-Jenkins, CJCS-LC
LCDR Rachael Bralliar, U.S. Coast Guard
Paul Dean, State/L-NPV
Robert Gonzales, State/EUR-UMB
Jane Purcell, State/ISN-CPI
Wayne Raabe, Department of Justice/CRIM-NDDS
Michael Uyehara, U.S. Embassy, Kyiv
LT Tamara Wallen, U.S. Coast Guard
Robert (Chip) Wedan, DoD/GC
Ms. Marta Zielyk, interpreter
Ms. Matilda Kuklish, interpreter

-- GOU delegation:
Volodymyr Bielashov, MFA
Oleksandr Bondarenko, MFA
Ruslan Nimchynskyi, Ukrainian Embassy
Olexander Osadchyi, Ukrainian Embassy
Viktor Seredniy, State Border Guards
Volodymyr Shkilevych, Ukrainian Embassy
Liudmyla Sidlovska, Ministry of Justice
RICE

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