COSTS OF NOT HAVING AN ARTICLE 98 AGREEMENT ARE

C O N F I D E N T I A L SECTION 01 OF 03 SAN JOSE 002717

SIPDIS

E.O. 12958: DECL: 11/23/2015
TAGS: PREL MASS ETRD EAID CS KICC
SUBJECT: COSTS OF NOT HAVING AN ARTICLE 98 AGREEMENT ARE
MOUNTING

REF: A. SAN JOSE 2106


B. SAN JOSE 234

C. 04 SAN JOSE 2233

D. 04 SAN JOSE 443

E. 03 SAN JOSE 1773

Classified By: Ambassador Langdale for reasons 1.4 (b) and (d)

Summary
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1. (C) The GOCR, though not philosophically opposed to
providing the United States with the protections contained in
an Article 98 agreement, faces serious political and
constitutional impediments, which have for the last two and a
half years prevented an agreement from being concluded.
Meanwhile, because of the American Servicemembers' Protection
Act (ASPA) and the Nethercutt Amendment to U.S.
appropriations bills, Costa Rica is paying a growing price
for not signing an Article 98 agreement. Beginning in FY 04
U.S. military assistance has been cut off, and beginning in
FY 05 Costa Rica lost its eligibility for Economic Support
Funds (ESF). This has adversely affected U.S.-Costa Rican
cooperation in the areas of counternarcotics,
counterterrorism, and, to a lesser extent, free trade. End
summary.

Political/Constitutional Dilemma
--------------


2. (C) President Pacheco is not opposed to an Article 98
agreement per se, but he and his foreign minister, Roberto
Tovar, recognize that such an agreement would not be ratified
by the Legislative Assembly. This is because of widespread
support for the International Criminal Court (ICC),one of
whose magistrates is Costa Rican, and the belief that an
Article 98 agreement somehow undermines the ICC and weakens
Costa Rica's commitment to multilateralism and international
law. Consequently, the GOCR's position for the last two and
a half years has been that it would consider only an Article
98 agreement that would not have to be submitted to the
Legislative Assembly for approval.


3. (C) The Costa Rican constitution requires that
international agreements negotiated by the executive branch
be approved by the Assembly before they can be deemed valid.
There is an exception, however, for lesser-rank "protocols"
derived from an existing international agreement and
expressly authorized by that agreement. Such a protocol can
be promulgated by the executive without legislative approval.
The trick is to identify an existing international agreement
that can serve as a legal foundation for the scope of
protections contained in an Article 98 agreement. We must
not only persuade President Pacheco, but ultimately the
Constitutional Chamber of the Supreme Court. (Comment: The
Court has a history of striking down the exercise of
executive power. In September 2004, for example, the Court
ruled that the executive had overstepped its authority and
violated Costa Rica's tradition of neutrality by giving
political support to U.S. and allied military action in Iraq.
See 04 San Jose 2401.)

New Ferment Over Article 98
--------------


4. (U) The Costa Rican press reported November 20 and 21 that
the U.S. Congress had passed an FY 06 appropriations bill
that prohibits the provision of Economic Support Funds (ESF)
to countries that are parties to the ICC and have not entered
into an Article 98 agreement with the United States. Foreign
Minister Tovar was interviewed in the leading newspaper and
complained that the U.S. legislation is unfair and that Costa
Rica should be among the exempted countries, as a good and
reliable friend of the United States. He also left a small
opening for negotiations by adding, "We have already said (to
the USG) that we can analyze the possibility of supporting
some other agreement (other than the standard model Article
98 agreement) inasmuch as it does not contradict Costa Rican
principles."


5. (C) Ambassador followed up by phoning Tovar the morning of
November 21 and asking him, in light of his comment to the
press and his earlier suggestion to Ambassador to do
"something" about Article 98, whether the time might be right
for renewed discussions. Tovar replied that at the moment he
is completely consumed with preparing a brief for Costa
Rica,s border dispute case against Nicaragua in the
International Court of Justice (ICJ). After that, he will
think about how to craft an Article 98 solution and committed
to get back with Ambassador on this issue after the holidays.
U.S. Military Assistance Comes To An End
--------------


6. (SBU) Although Costa Rica abolished its military in 1949,
it has police, a Coast Guard, and an Air Section that carry
out paramilitary functions. Engagement with the U.S. Armed
Forces increased dramatically with the signing of the
Bilateral Maritime Agreement for Counternarcotics Cooperation
of 1998. The relationship is managed by the military group
at the Embassy, headed by a Coast Guard Commander. His main
counterparts in the GOCR are the Minister of Public Security
and the Director of the Costa Rican Coast Guard, who reports
to that minister. Cooperation is in the areas of the fight
against drug trafficking and the fight against terrorism.


7. (SBU) Between 2000 and 2002, the United States supplied
most of the boats now used by the Costa Rican Coast Guard,
including three 82-foot patrol boats (furnished as Excess
Defense Articles-EDA) and six 24-foot rigid-hull inflatable
boats (purchased with State Department International
Narcotics and Law Enforcement (INL) funds). In addition,
using funds from DOD's Foreign Military Sales (FMS) program,
Costa Rica has been able to purchase many small but essential
items used in law enforcement, such as vehicles, radios,
uniforms, flashlights, night-vision goggles, etc.


8. (SBU) The bread and butter of U.S. cooperation, however,
has been training, mostly funded with International Military
Education and Training (IMET) funds, on the order of about
USD 400,000 a year. State Department INL funds added as much
as USD 200,000 for training. The Costa Rican Coast Guard was
the main beneficiary, receiving a variety of courses for
professional development. IMET-funded training was also
provided to intelligence officers, the Special Intervention
Unit (SWAT team),and mechanics and pilots in the Air Section.


9. (SBU) Costa Rican eligibility for IMET, EDA, and FMS ended
with the entry into force of the American Servicemembers'
Protection Act (ASPA) because Costa Rica is a party to the
ICC and has not signed an Article 98 agreement. As of FY 04,
Costa Rica has not received any U.S. military assistance.
Coincidentally, INL funds have diminished significantly for
Costa Rica, and a U.S. maritime engineer resident in Costa
Rica and financed by INL has moved to Panama.

Ineligibility for Economic Support Funds
--------------


10. (SBU) Costa Rica's failure to sign an Article 98
agreement has also resulted in ineligibility for ESF starting
in FY 05. As a result, Costa Rica was the only signatory
country to the U.S.-Central American-Dominican Republic Free
Trade Agreement (CAFTA-DR) that could not receive a portion
of the FY 05 USD 20 million in ESF in trade capacity building
funds for labor and environmental programs. The funds are
being used to modernize labor justice systems, strengthen
labor ministry inspection systems, and improve enforcement of
laws against sex discrimination. Significant amounts of ESF
for trade capacity building in CAFTA-DR countries could be
appropriated in the future, but Costa Rica would remain
ineligible.

Comment
--------------


11. (C) The GOCR is keenly aware of the costs of not signing
an Article 98 agreement. The worst affected are the Ministry
of Public Security and supporters of an expanded trade
relationship with the United States. Although the value of
U.S. military assistance in monetary terms may not seem to be
much, it is vital for the maintenance of Costa Rica's
counternarcotics and counterterrorism capabilities. The lack
of funds in the last two fiscal years has resulted in
noticeable deterioration of the seaworthiness of the Costa
Rican Coast Guard fleet and degradation of the operational
readiness of other law enforcement units such as the SWAT
team. More worrisome, the absence of training and other U.S.
military assistance may eventually cause Costa Ricans to call
into question the value to them of the Bilateral Maritime
Agreement.


12. (C) A key preoccupation of Foreign Minister Tovar and
Costa Rican Ambassador to the United States Tomas Duenas is
that Costa Rica is being cut off from ESF needed to implement
CAFTA-DR. Tovar moreover feels that Costa Rica is being
unfairly discriminated against. Tovar and Duenas both
believe that if it becomes generally known that Costa Rica is
not eligible for assistance being received by all other
CAFTA-DR countries, it will hurt prospects for ratification
of CAFTA-DR in Costa Rica.


13. (C) The unavailability of U.S. military assistance and
ESF unavoidably contributes to a decline in U.S. influence in
Costa Rica and makes it more difficult to achieve our
objectives in the areas of counternarcotics,
counterterrorism, and, to a lesser extent, free trade. Our
task is to find a way out of the dilemma faced by the GOCR
because it is in reality also a dilemma for the United States
as we strive to stem the flow of illegal drugs, stop
terrorists, and foster an ever-growing trade relationship
with Costa Rica.
LANGDALE