Cablegate: Avian Influenza Lawsuit Against Usg: Request For

VZCZCXRO6061
OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #1676/01 2490801
ZNR UUUUU ZZH
O 050801Z SEP 08
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9979
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEHGV/USMISSION GENEVA PRIORITY 7820
RUEHBY/AMEMBASSY CANBERRA 2988
RUEHLM/AMEMBASSY COLOMBO 1251
RUEHKA/AMEMBASSY DHAKA 1220
RUEHNE/AMEMBASSY NEW DELHI 2183
RUEHKO/AMEMBASSY TOKYO 2450
RUEHWL/AMEMBASSY WELLINGTON 3025
RUEHHK/AMCONSUL HONG KONG 2934
RUEHPT/AMCONSUL PERTH 1098
RHMFIUU/BUMED WASHINGTON DC
RHHJJPI/USPACOM HONOLULU HI
RHHJJPI/PACOM IDHS HONOLULU HI
RUENAAA/SECNAV WASHDC
RUEKJCS/SECDEF WASHDC
RUEAWJB/DEPT OF JUSTICE WASHDC
RULSAAV/NAVMEDRSCHCEN SILVER SPRING MD
RHEHNSC/NSC WASHDC
RUEAIIA/CIA WASHDC
RHEFDIA/DIA WASHINGTON DC

UNCLAS SECTION 01 OF 02 JAKARTA 001676

SENSITIVE
SIPDIS

DEPT FOR P, EAP, EAP/MTS, EAP/MLS, EAP/RSP, G/AIAG,
OES/IHA, L, L/DL FOR DICKERSON
USAID FOR ANE/CLEMENTS AND GH/CARROLL
DEPT PASS TO HHS/WSTEIGER/ABHAT/MSTLOUIS AND HHS/NIH
DEPT PASS TO USDA/FAS/OSTA BRANT, ROSENBLUM
DOJ FOR OFL/HOLLIS
DOJ FOR OFL/HERRUP
GENEVA FOR WHO/HOHMAN
NSC FOR E.PHU
SECDEF FOR USDP/ISA/APSA D.WALTON

E.O. 12958: N/A
TAGS: PGOV TBIO KFLU KLIG ID
SUBJECT: AVIAN INFLUENZA LAWSUIT AGAINST USG: REQUEST FOR
LETTER TO COURT EXPLAINING SOVEREIGN IMMUNITY

REF: JAKARTA 1656 AND PREVIOUS

JAKARTA 00001676 001.2 OF 002

1. (U) This message is Sensitive but Unclassified. Please
handle accordingly.

2. (U) This message requests Department's guidance by
September 10. Please see para 8 for action request.

3. (SBU) SUMMARY: Legal proceedings are scheduled to begin
in the Central Jakarta District Court on September 17 in the
avian-influenza lawsuit against the USG and the World Health
Organization (refs). A key contact at the Indonesian
Department of Foreign Affairs (DEPLU) has asked Mission to
submit a letter to the court explaining the concept of
sovereign immunity, which he would send to the court with an
opinion from DEPLU. Although he stated that a proceeding
would likely still be necessary, he believed that the judges
could dismiss the case on jurisdictional grounds, if given
the legal basis to do so. Mission requests immediate
authorization to draft this letter in conjunction with the
Department of Justice (DOJ) and local counsel. END SUMMARY.

DEPLU RECOMMENDS COURSE OF ACTION

4. (SBU) On August 13, Mission sent a Diplomatic Note to the
Indonesian Department of Foreign Affairs (DEPLU) asserting
sovereign immunity, as instructed by Washington (reftel). On
September 2, DCM, Poloff and DOJ Resident Legal Advisor (RLA)
met with Arif Havas Oegroseno, Director of DEPLU's Office of
Political, Legal and Regional Treaties. During that meeting,
Oegroseno stated he would have an informal conversation with
the court about the case.

5. (SBU) On September 5, DCM, Poloff and DOJ Resident Legal
Advisor (RLA) met with Arif Havas Oegroseno again at his
request. Oegroseno stated he had discussed the case with the
court and, based on his conversation with the court,
recommended Mission prepare a letter, addressed to the court,
explaining the basis for sovereign immunity in international
law, and requesting the case be dismissed on the grounds of
lack of jurisdiction. Oegroseno asked that the letter be
sent to DEPLU under cover of a diplomatic note. He explained
that he would then submit our letter with a legal opinion
from DEPLU to the court. He clarified that the letter should
only discuss jurisdiction to adjudicate the case and not
touch on the merits of the case.

6. (SBU) Mission asked whether the World Health Organization
(WHO) should submit a similar letter to the court through
DEPLU. Oegroseno stated that he could offer no opinion on
the best course of action with the WHO because he had not
spoken to any WHO representatives or received their assertion
of immunity.

DEPLU OFFERS POSTPONEMENT OF THE TRIAL

7. (SBU) At the September 5 meeting, Oegroseno said the
court could consider postponing the date of the proceeding by
three months. Oegroseno agreed that the current U.S.,

JAKARTA 00001676 002.2 OF 002

Indonesia, and Australia conversations regarding sample
sharing were important and noted the postponement could give
interlocutors additional time to discuss sample sharing
without the potential disruption caused by the civil suit.

ACTION REQUEST

8. (SBU) Mission requests immediate authorization to draft
the requested letter, in conjunction with the Department of
Justice (DOJ) and local counsel. Mission requests the
Department's guidance, before September 10, as to which
specific points to make in the requested letter regarding
jurisdiction and the USG claim of sovereign immunity.
HUME

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