CSI IN TURKEY PRESENTS A "BINDING" IMPASSE

UNCLAS SECTION 01 OF 02 ANKARA 006457

SIPDIS

ROME FOR ICE ROBERT STIRITI
DHS FOR CSI - TODD HORTON, KRISTIN DUBELIER
DEPT PASS TRANSPORTATION DEPT

SENSITIVE

E.O. 12958: N/A
TAGS: EWWT PTER ETRD KTIA TU
SUBJECT: CSI IN TURKEY PRESENTS A "BINDING" IMPASSE

Ref: Ankara 4622 and previous


1. (U) This cable is sensitive but unclassified. Please protect
accordingly.


2. (SBU) Summary: Two days of meeting with Foreign Trade
Undersecretariat (FTU) officials in Ankara failed to find a solution
to contradicting views about the legal nature of an agreement that
would implement the Container Security Initiative (CSI) in Turkey.
The FTU insists it needs a "binding" international agreement, while
DHS has been given the authority to only negotiate "non-binding"
arrangements. The diplomatic status of the CSI officials stationed
in Izmir also continues as a problematic issue. At the end of the
meetings, the option of modifying the existing Customs Mutual
Assistance Agreement (CMAA) to incorporate CSI activities was
discussed as a potential solution that might avoid an extensive
ratification process on the Turkish side. Turkey's foreign trade
officials remain very interested in CSI and seem intent on finding a
solution, although they seem to lack expertise on the legalities of
international agreements. One of the reasons why they may be so
intent on turning CSI into law is to oblige other GOT agencies
opposed to the program (including many in Turkish Customs) to
implement it. End Summary.

--------------
LEGAL NATURE OF AGREEMENT
--------------


3. (SBU) Two days of meetings (November 15 and 16) with Turkish
Foreign Trade (FTU) officials failed to resolve Turkey's claimed
inability to implement the Container Security Initiative (CSI)
program without a "binding international agreement." According to
FTU Deputy Director General for the Americas, Yuksel Akca, they
consider a binding agreement to be "an international agreement,"
meaning one that must be approved by either the Council of Ministers
or the Parliament and published in the Official Gazette. (They were
not clear as to what the differences in the document would be to
allow Council of Ministers versus full Parliamentary approval.) In
either case, an agreement must therefore contain an "entry into
force" notification procedure.


4. (SBU) Meanwhile, we understand from the DHS CSI General Counsel
that all 32 existing CSI agreements are non-binding in that they are
statements of intent to cooperate and therefore do not require
subsequent ratification. CSI would apparently have to seek Circular
175 authority to negotiate the "binding" agreement sought by FTU.

--------------
DIPLOMATIC STATUS
--------------


5. (SBU) Another difficult issue is the diplomatic status of U.S.
Customs officials stationed that would be assigned to Turkey under
CSI. Initially, FTU officials told us that the GOT "will not"
afford any privileges and immunities to the CSI officials. However,
when we explained that we sought limited immunities that would
protect the officials while performing their official duties, they
conceded that this was not an unreasonable request and agreed to
present this to the next inter-agency meeting they convene to
discuss the program. The CMAA also provides for waiver of
immunities on the request of other parties. FTU suggested that it
could be possible to overcome this problem if the officials were
assigned to the U.S. Consulate in Izmir, if such an entity still
exists.

--------------
DRAFTING CHANGES
--------------


6. (SBU) In addition to these two main issues, FTU raised eight less
fundamental textual points that would seem easier to address:


A. FTU officials want the language to reflect that
reexamination in the U.S. will only occur because of additional
information.


B. FTU officials want the implementation procedures referred
to within the text of the agreement as an "Annex" or supporting
document.


C. To provide complete reciprocity, at least on paper, FTU
officials asked that the text of the agreement include the name of a
U.S. port to which the GOT will have the reciprocal ability to
assign personnel. They stressed that this should be a port, such as
"Port Elizabeth" rather than the U.S. Customs National Targeting
Center (NTC).


D. FTU officials want the U.S. CSI officials to share with
Turkish Customs copies of regular reporting back to the United
States.

E. FTU officials want a stipulation in the implementation
procedures that neither party to the agreement will be responsible
for the fees incurred in the event of a physical examination of a
container. They explained that in Turkey this fee is an additional
expense that is not clearly borne by the freight handler or
exporter.


F. FTU officials want a clarification in the introduction of
the implementation procedures that the risk for terrorism comes from
the containerized cargo, not from the port.


G. FTU officials want us to specify what will be photographed
in the case of a physical inspection and to remove the requirement
that such action first be approved by the appropriate Turkish
government official or office.


H. FTU officials want it to be kept in the agreement and in
the implementing procedures that the GOT shall not bear any
functional or personal costs of the CSI officers.

--------------
CMAA MODIFICATION
--------------


7. (SBU) At the end of the meetings, we discussed the notion of
modifying the existing Customs Mutual Assistance Agreement (CMAA) as
a possible way around the binding/non-binding impasse. CSI
implementation principles could be included in the text of the CMAA,
appended to it, or included in a side-letter. The FTU officials
agreed to present this option at their next inter-agency meeting,
and examination of the CMAA indicated that much of the language in
the CSI proposed implementation procedures is already included in
the CMAA.

--------------
COMMENT AND NEXT STEPS
--------------


8. (SBU) Comment: FTU officials emphasized that the GOT wants and
continues to make preparations for CSI, but they must find a legal
formula that allows them to ratify the document and put it into law.
It is apparent that the FTU officials have little legal expertise
regarding international treaties. Therefore, it is not abundantly
clear that both sides mean the same thing when they reference a
"binding" document or assert such a document is the only option
available to the GOT. They are similarly uninformed about Vienna
Convention related issues. At the same time, FTU officials
repeatedly assert their desire to implement CSI in Turkey. One of
the reasons for their insistence on such a legal agreement may to
oblige other GOT agencies who are opposed to CSI (including many in
Turkish Customs) to implement it. It is important that we continue
the momentum created by these meetings and continue the dialogue
about a solution during the coming months. Post sees the next step
as being for DHS and State Department legal experts to determine the
viability of either incorporating CSI into the CMAA or agreeing to a
process that would allow for "entry into force" of a stand-alone CSI
agreement with the Government of Turkey.
Wilson