MOVING CLOSER TO AGREEMENT ON U.S. MILITARY ACCESS

C O N F I D E N T I A L SECTION 01 OF 02 SOFIA 001971

SIPDIS

E.O. 12958: DECL: 11/22/2015
TAGS: MARR PGOV PREL BU
SUBJECT: MOVING CLOSER TO AGREEMENT ON U.S. MILITARY ACCESS

REF: A. SOFIA 000924


B. SOFIA 001796

Classified By: Amb. John Beyrle, for reasons 1.4 a and d.


1. (C) SUMMARY: A negotiating team led by Ambassador Robert
Loftis made substantial progress toward a supplemental Status
of Forces Agreement (SOFA) and Defense Cooperation Agreement
(DCA) with the GOB during talks in Sofia on November 16-17.
The U.S. and GOB reached agreement in principle on most
issues with the exception of taxation,
importation/exportation, contracting procedures, criminal
jurisdiction, operational flexibility, and strategic
framework language. The U.S. team plans another visit to
Sofia in January 2006, to be preceded in December by a
technical team to discuss tax, importation and related
mechanisms. END SUMMARY.


2. (C) During November 16-17 negotiations in Sofia, the U.S.
and Bulgarian delegations made progress in a number of areas,
primarily in the draft Status of Forces Agreement. Agreement
was reached in the following areas:

a. Preamble: The U.S. agreed to add a reference to the
applicability of the NATO SOFA; however, the Bulgarian
Ministry of Justice would prefer the reference as an
operative paragraph.

b. Definitions are largely agreed. Further work remains to
refine the definition of dependents, including the status of
dependents who are also Bulgarian nationals who may be a
member of the civilian component. Bulgaria agreed that
Bulgarian employees could be considered a member of the
civilian component for claims purposes.

c. Bulgaria will provide revised text on entry/exit of
dependents and contractors.

d. Agreed to language on determination of official duty for
alleged criminal offenses and civil liability.

e. Agreed to language on Custody and Access.

f. Agreed to language on Confinement and Visitation.

g. Agreed to language on Discipline.

h. Agreed to language on Security.

i. Agreed to language on Motor Vehicles and Drivers Licenses.

j. Agreed to language on Customs Procedures.

k. Agreed to language on Military Post Offices.

l. Agreed to language on Currency and Exchange (ad ref
pending approval of the Central Bank).

m. Agreed to language on Utilities and Communications.

n. Agreed to language on Environment, Health and Safety.


3. (C) The Bulgarians proposed a new article that would hold
the U.S. one hundred percent liable for any damages it might
cause. The U.S. rejected this as contradicting the NATO SOFA
claims provisions. The U.S. also agreed to provide new
language on contracting procedures to indicate that Bulgarian
companies are eligible to bid on contracts (without, however,
creating any obligations on the part of the U.S. to award
contracts to Bulgarian entities). The U.S. will also provide
language on construction standards.


4. (C) Several key issues remain to be resolved. These
include:

a. Criminal Jurisdiction: The Bulgarian team told Amb.
Loftis that they had "already gone beyond" their mandate to
negotiate on jurisdiction. As in the previous negotiating
session, the Bulgarians expressed concern that substantially
agreeing to the U.S. request for a blanket advance waiver
(with recall provisions) would open the final agreement to
constitutional court challenges from opponents in Parliament.
Amb. Loftis noted that primary U.S. jurisdiction over U.S.
service members had been granted by Parliament in temporary
exercise support agreements (ESAs) on two occasions. The
Bulgarians termed the ESAs as "ad hoc" agreements that
received little scrutiny. While willing to waive criminal
jurisdiction for the limited period of the exercises, the
Bulgarians said they were not prepared to accept a permanent
waiver. The lead Bulgarian negotiator, Ambassador Lubomir
Ivanov, stressed, "We need to discuss it (criminal
jurisdiction) at a much higher level."
b. Operational flexibility: While the two sides did not
discuss this issue in detail during the plenary sessions, it
arose in a private meeting between Amb. Loftis, Amb. Ivanov,
Foreign Affairs Committee chairman Passy, and defense
committee chairman Naidenov on November 16. Noting
constitutional restrictions on foreign forces, Naidenov asked
if the U.S. planned to launch offensive military operations
from Bulgarian territory. Amb. Loftis said that the U.S.
envisions having a maximum of only 2,500 troops in Bulgaria
at any given time, an unlikely force for offensive actions.
Amb. Loftis said that while the U.S. wants to find ways to
accommodate Bulgaria's concerns, the U.S. requires the
flexibility to move our forces where and when needed.
Moreover, the proposed Bulgarian provision that would link
the U.S. presence solely to NATO is unacceptable: this is a
bilateral agreement. During the closing of the plenary
session, Amb. Ivanov again referred to pending legislation on
foreign troop presence in Bulgaria, but noted that the GOB is
willing to find a way to meet American concerns and is not
wedded to its draft language.

c. Strategic Framework: Ivanov reiterated the GOB's desire to
include language for a "strategic framework" (see reftels A
and B) noting that "such a structure would be more convincing
to the public" and would help sell the agreement. Ivanov
said that the GOB is flexible in how this language is
integrated into the agreement and would be open to "less
detailed" provisions. Amb. Loftis replied that the United
States prefers separate, discrete agreements as more
appropriate and easier to manage, but that we would consider
the Bulgarian approach and discuss it in more detail at our
next meeting.


5. (C) To move the taxation issue forward, a team of U.S.
experts will visit Sofia in December to continue technical
discussions on taxation, importation/exportation, contracting
procedures and related issues. The purpose is not/not to
negotiate the texts, but to explain to Bulgarian authorities
how the U.S. handles these issues with other partners. Once
the Bulgarians understand the mechanisms better, they will be
in a better position to agree to language in the agreement.
(This practice was immensely helpful in reaching agreement on
the environmental, security and communications articles.)


6. (C) Ivanov was unexpectedly called away from the
negotiating table on November 17 by Foreign Minister Kalfin
to discuss a phone call from the Romanian foreign minister.
The Romanians had heard a rumor that a U.S. official in
Washington had said that the talks were not going well and
that the U.S. delegation saw no reason to continue
negotiating. Amb. Loftis denied that any U.S. official had
made such a statement and gave Ivanov a transcript of
statements by Department spokesman Adam Ereli on November 16
indicating that negotiations were proceeding well. The
Bulgarians were satisfied with this explanation.


7. (C) Our public outreach plan, undertaken in October to
counter misinformation, has had positive results. We and the
MFA have developed a joint public diplomacy strategy through
which we share talking points and coordinate information
posted on our respective web sites. At our urging, Prime
Minister Stanishev publicly stated his support November 4 for
"the establishment of a rotating brigade stationed in
Bulgaria and Romania." During this visit, Amb. Loftis gave
one newspaper interview and one television interview that
were generally well-reported.


8. (C) COMMENT: The talks proceeded in a friendly,
constructive atmosphere. As most technical issues have been
substantially agreed to, the challenge in the next round will
be to address criminal jurisdiction, operational flexibility,
and the strategic framework. Despite warnings from the
Bulgarians to avoid anything that would be open to
constitutional challenges, Ivanov signaled the GOB's desire
reach agreement. We will maintain our public diplomacy
efforts and continue to urge influential Bulgarians, both in
and out of government, to speak out in favor of the
agreement. END COMMENT.


9. (U) This cable has been cleared with Ambassador Robert
Loftis.
BEYRLE