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Cablegate: Eu Additionality at Icao: Ec Efforts to Obtain

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 MONTREAL 001464

SIPDIS

SENSITIVE

FOR IO, EUR and L (JGergin)
FROM US MISSION TO ICAO

E.O. 12958: N/A
TAGS: AORC EAIR EU ICAO
SUBJECT: EU Additionality at ICAO: EC Efforts to obtain
Observer Status

1. (U) Summary and action request. As Department is aware,
for some time the European Union has been talking with high
level officials of the International Civil Aviation
Organization about its desire to have an enhanced and
permanent presence at ICAO. Of 36 current Council members,
8 are from Europe. ICAO Council President Assad Kotaite has
told US Permanent Representative Ambassador Stimpson that
Rule 33 of the Council's Rules of Procedure would permit the
Council to invite the EC to observe and participate in
Council meetings on a regular basis when issues are
discussed over which the EC has competence. When asked, US
Mission has explained US policy against EU additionality.
Mission reading of Council Rules raises a number of
questions and Post requests guidance from L per para 11
below. Kotaite also said that the Air Navigation
Commission's Rules of Procedure would permit similar
participation.

2. (SBU) US Mission has obtained a copy of a letter from
Kotaite to EC Vice-President Loyola de Palacio containing
his interpretation of Council and Commission rules. The
letter states that there would be "no legal obstacle for a
delegation of the Commission to ICAO to be established in
Montreal to represent the interests of the EC." Text of
letter is contained in para 13 below. EC tried to obtain
diplomatic status through its bilateral mission in Ottawa
and was turned down. Meanwhile, the EC continues to look
for office space at ICAO, and, we understand, hopes to have
its presence at ICAO established by early Spring. Canadian
PermRep's personal belief is that some of the Rules of
Procedure, which were written by Kotaite and increase his
powers, including the right to invite observers to Council,
are inconsistent with the Chicago Convention and should
undergo review. The Canadian outlined his personal three-
point strategy. He recommends high-level bilateral
(US/Canada) discussions in the near future, and a strong and
immediate response in opposition should Kotaite
"accommodate" the EC in a way that bypasses Council
approval. End summary and action request.

3. (SBU) ICAO Council President Assad Kotaite called on
Amb. Stimpson on Nov. 3. Among other things, the two
discussed the EC's request for a more active role at ICAO
through permanent observer status (with the right to speak).

4. (U) Background. The Chicago Convention does not provide
for "Observer" status. The Council's Rules of Procedure --
which were written by Council President Kotaite -- allow the
Council to invite observers on matters of interest to them.
Kotaite has a list of organizations from which he chooses to
send invitations as he feels appropriate (Council members
sometimes suggest additional observers from Kotaite's list
for a particular meeting, but getting new entities on that
list has proven difficult.) In addition, anyone from the
public may observe a Council meeting so long as the meeting
has not been declared "closed" due to the sensitive nature
of the issue under discussion. End background.

5. (U) Kotaite told Ambassador Stimpson that Rule 33 (Rules
of Procedure for the Council, Doc 7559/6, Sixth Edition,
1999) would allow the EU to be represented at and
participate in Council meetings when issues over which it
has competence are discussed. The Ambassador reiterated the
US's strong opposition to EU additionality at ICAO.

6. (SBU) Alternate US Rep met with Canadian Permanent
Representative, Ambassador Alain Dupuis on Nov. 9. Dupuis
said that the EC had been actively seeking representation at
ICAO, while President Kotaite had been actively pursuing a
means to accommodate them. When he (Dupuis) was Deputy
Chief of Protocol, the EC had approached him with the
proposal that it use its bilateral agreement with Canada as
the basis for obtaining diplomatic status for an EC
representative to ICAO. Dupuis responded that under that
scenario, the EC would have to put its representative in
Ottawa where s/he would work primarily on bilateral issues,
and would have to drive on a daily basis to Montreal to
observe (but not speak at) Council meetings. Otherwise, the
EC rep would have to be accredited under the ICAO-GOC Host
Country Agreement. At the September 2004 Assembly,
spokesperson on EC Participation in ICAO Ludolf van Hasselt
said that he was looking for property in Montreal. Dupuis
told him he should clear up the bilateral vs. host country
agreement matters before the EC buys anything to set up an
office.
7. (SBU) Stressing that the GOC had not yet formulated its
strategy to deal with potential EC additionality at ICAO,
Dupuis outlined his own thoughts for a three step approach.
First there would need to be an EU-wide decision with
agreement from all member states on EC representation
throughout the UN system. Once that decision is
communicated to ICAO's Secretary General, the second step
would be Council discussion of the EC's request, where
Canada would speak as a Council member (as opposed to Host
Country). The Council could refer the matter to the Legal
Committee for review, which "could take years." Once the
Council approves the request, it would instruct the
Government of Canada to accredit the EC under the Host
Country Agreement (which Canada would "rubber stamp.").
Dupuis said it was important to delay Council approval at
least until after the next Assembly (September 2007).
Dupuis stressed that while we would likely have a number of
allies from the developing world and perhaps could even
enlist one or more large EU member countries, one had to be
extremely careful in how this was handled. For example,
developing countries might see the logic of having the EC
represented at the Air Transport Committee, and once the EC
is "in," might side with the Europeans on strengthening
ICAO's air transport functions at the expense of safety and
security. Ottawa, he said, wants to be sure that all
potential ramifications are examined, not only for ICAO but
for the entire UN system.

8. (SBU) When asked about the President's possible use of
the Rules of Procedure (ROP) to "accommodate" the EC and
circumvent Council debate, Dupuis said that the Council had
long been acting beyond the authority granted to it in the
Chicago Convention. The ROP, written by Kotaite and which
grant him tremendous powers, need review. A general review
could be conducted at any time; but a review targeted at the
EC should come only after EC observer status has been
brought to the Council for discussion.

9. (U) US Mission's reading of the Council's Rules of
Procedure raises questions. Rules 32 and 33 deal with
Observers. Rule 32, which would not apply to the EC, three
times explicitly authorizes "participation" by certain
observers. It states, "Any Contracting State may
participate without a vote in the consideration by the
Council and by its Committees and Commissions of any
question which especially affects its interests (Article 53
of the Convention). The President may invite such
participation where he considers that the condition of
special interest is fulfilled. If a contracting State
requests permission to participate on the grounds of special
interest, the President may approve the request if he finds
that the condition of special interest is fulfilled;
otherwise, he shall refer the request to the Council for
final decision."

10. (U) In stark contrast, Rule 33, which could apply to
the EC, is silent on the right to participate. It states,
inter alia, "a) The Council may invite non-Contracting
States and international organizations or other bodies to be
represented at any of its meetings by one or more
Observers." Nonetheless, the definitions section of the
Rules of Procedure appears to build in the right of an
Observer to "participate" in Council discussion. It defines
Observer as "a person representing a Contracting State not
represented on the Council, a non-Contracting State, an
international organization or other body, designated and
authorized by his State or organization to participate in
one or more of the meetings of the Council without the right
to vote or to move or second motions or amendments, under
such further conditions as the Council may determine and
holding credentials as evidence of his appointment."
Comment: In a body such as the Council, where there are no
votes (except elections) and most decisions are reached by
consensus, the right to speak is tantamount to a right to
vote. End Comment.

11. (U) Action Request: Mission requests Department's
reading of whether Rule 33, as currently written, would
allow an EC representative to speak at Council and Committee
meetings.

12. (U) Regarding the Air Navigation Commission, its rules
permit interested non-members to attend. Some, such as
IFALPA (the international pilot's union), actually have an
assigned seat at the table. The number of "observers"
continues to grow, and, given the size of the room, may need
to be limited in the future. Increasingly, observers have
been given the floor to make statements or ask questions,
which is hampering the effectiveness of the Commission.

13. (SBU) Following is the text of the October 27 letter
from Kotaite to de Palacio, which the US Mission was given
in confidence:

I wish to refer to the letter dated 22 April 2004 from Mr.
Seamus Brennan, Minister for Transport of Ireland, in his
capacity of President of the Council of the European Union,
and to the conversations between myself and Mr. Ludolf
Wihelmy van Hasselt, Representative of the European
Commission on the subject of a more effective participation
of the European Community in the work of ICAO.

As you know, the ICAO Council decided in 1989 to include the
European Community in the list of organizations which may be
invited to participate in suitable ICAO meetings as
observer.

The ICAO Council is a permanent body composed of thirty-six
States elected by the Assembly. The Council holds
approximately three sessions per year.

Under Rule 33 of its Rules of Procedures, the Council may
invite an international organization to be represented at
any of its meetings by one or more observers. In addition
to ad hoc requests from the European Community, should the
latter desire to send an observer to Council meetings, on a
regular basis, it could indicate the subjects of interest to
it among the items included in the work programme of the
Council for the following session, for decision by the
Council on representation at such meetings; the Council
adopts at the end of each session its provisional work
programme for the next session.

Concerning the Air Navigation Commission, Article 56 of the
Convention on International Civil Aviation provides that it
is composed of fifteen members appointed by the Council for
a period of three years from among persons nominated by
Contracting States. Under the applicable Rules of Procedure
(Doc 8229-AN/876/2), an international organization may be
invited by the Commission, with the approval of the
President of the Council, to participate in one or more
meetings of the Commission.

Certain international organizations which are on the
aforementioned ICAO list have established resident
delegation offices in Montreal. From ICAO standpoint, there
would be no legal obstacle for a delegation of the
Commission to ICAO to be established in Montreal to
represent the interests of the European Community.

I trust that the enhanced cooperation between ICAO and the
European Community will further contribute to achieving the
aims and objectives of the Convention on International Civil
Aviation. Yours sincerely, Assad Kotaite End Text.

14. (U) US Mission will continue to follow this matter
closely and will report significant developments.

Stimpson/Allen

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