CHEMICAL WEAPONS CONVENTION (CWC): RESPONDING TO

C O N F I D E N T I A L THE HAGUE 002289

SIPDIS

FOR THE SECRETARY FROM OPCW AMBASSADOR JAVITS

E.O. 12958: DECL: 09/11/2013
TAGS: PARM PREL CWC ILO UN
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC): RESPONDING TO
THE ILO JUDGMENT ON FORMER OPCW DIRECTOR-GENERAL BUSTANI

Classified By: Ambassador to the OPCW Eric M. Javits for reasons 1.5 b)
and d).

This is CWC-88-03.


1. (C) As you consider the U.S. response to the ILO's
egregious decision regarding former Director-General of the
Organization for the Prohibition of Chemical Weapons (OPCW)
Jose Bustani, I want to provide my thoughts, as your eyes and
ears on the ground, on the key U.S. interests involved with
this important issue. Let me assure you that the
overwhelming view among the OPCW delegations is that the
ILO's decision is simply wrong, and none of the
representatives wishes to pay the judgment to Bustani.
However, there is an equally strong sentiment that the OPCW
response must indicate respect for the rule of law, and that
a critical precedent will be set by the response of member
states to the ILO decision. The overwhelming view here,
which I share, is that ignoring the judgment would harm the
stature and reputation of the OPCW, and would permit a
dangerous precedent to stand regarding the operations of
international organizations.


2. (C) The general sentiment, and my own recommendation,
is that the ILO decision not be allowed to stand. It needs
to be fought, rather than flaunted. That would mean seeking
an appeal of the decision to the International Court of
Justice (ICJ),particularly on two points. First and
foremost, the ILO decision was "ultra vires" in "setting
aside" the political decision of States Parties; i.e., the
ILO had no right to adjudicate the case. The ILO decision
that Bustani was "staff" is patently absurd. If
unchallenged, it sets the precedent that States Parties lose
the ability to remove the politically appointed head of an
international organization. The decision therefore has to be
contested to ensure the proper political control and
leadership of international organizations, including the UN.


3. (C) Second, it is important to challenge the material
damage award provided by the ILO, which constituted
procedural error in specifying and assessing material damages
amounting to a "windfall". Allowing a windfall, in any case,
falls clearly under a "moral" and not a "material" damage
category.


4. (C) In short, there is a general consensus in the OPCW
that the Organization should go to the UN and seek permission
to appeal the ILO decision to the ICJ. If the UN denies that
permission, then we are in a better position to protest the
denial and politically reject the decision. If the UN
accedes to the request, then the OPCW can and should
challenge the decision in the ICJ on jurisdictional and
procedural grounds. I would imagine that, in view of the
interests of other States Parties and organizations to remove
this appalling precedent, we could encourage the filing of
"amicus curae" briefs from other international organizations
(and member states thereof) who share our interest in
ensuring that there is no doubt about the right of member
states to remove the head of an international organization.


5. (C) I recognize that the outrageous decision by the ILO
may have generated some support to simply turn our backs on
the judgment, and the ILO. However, I would assert that,
especially because it is so outrageous, it is critical for
the U.S. and others not to let it stand. The U.S. has an
interest in ensuring that the OPCW is not seen as an
organization ready to ignore a decision that it does not
like. But more important, the U.S. has an interest in not
permitting this precedent to stand unchallenged and in
ensuring that the leadership of international organizations
remain accountable to the member states. By pursuing its
appeal remedy, it will be easier, at a later date, to seek
consensus to contract with another mediating body to handle
staff labor disputes, a position that will be weakened if the
Organization ignores the ruling in the Bustani case. From the
center of this storm, I would urge that we fight the ILO
decision, rather than walk away from it.


6. (U) Javits sends.

SOBEL