PERUVIAN REACTION TO DEPARTMENT'S SOFA TEXT

UNCLAS LIMA 000046

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: KICC PREL MARR PE
SUBJECT: PERUVIAN REACTION TO DEPARTMENT'S SOFA TEXT

REF: 06 STATE 197183

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Summary:
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1. (SBU) Pol Mil Officer and MAAG Chief met with Ambassador
Bellina, Political Advisor to the Ministry of Defense and
Director of Policy and Strategy, on December 20 to discuss
the Department,s proposed SOFA text. Bellina reiterated the
Peruvian position that any SOFA should be grounded in the
Vienna Convention and the 1952 US-Peru Military Agreement.
He then enumerated the outstanding issues, categorizing them
according to their level of difficulty as: technical matters,
points for negotiation, and issues difficult to resolve
because they would involve legal/constitutional changes.
Bellina noted that the GOP was hiring an eminent
international jurist to examine ways in which the 1952
agreement can be used to reach a SOFA with the U.S. End
Summary.


2. (SBU) Pol Mil Officer and MAAG Chief met with Ambassador
Bellina, Political Advisor to the Ministry of Defense and
Director of Policy and Strategy, on 12/20/06 to discuss the
Department,s proposed SOFA text. Bellina repeated the
Peruvians' basic stance, that the best way to achieve a SOFA
is to ground desired changes in the Vienna Convention and the
1952 US-Peru Military Agreement. Bellina then gave us his
assessment of the outstanding issues, dividing them by
difficulty into three categories:

-Technical matters that could likely be worked out soon or
are already granted in practice by the GOP;

-Points that required negotiation;

-Items that would be difficult for Peru to concede due to
conflicts with existing law and/or the constitution.


3. (SBU) Bellina,s bird's-eye view of the SOFA challenges
should not be taken as a negotiating position, but rather his
experienced understanding of where things likely stand. He
also stated that the MOD was hiring an outside international
legal jurist, Juan Jose Ruda of the Catholic University, to
peruse our proposed text and see how it could best be covered
by the Vienna Convention and the 1952 US-Peru Agreement on
Military Cooperation.


4. (SBU) Bellina said that the following points should be
easy to continue in practice and to add to our dip notes or a
possible SOFA:

-- U.S. military personnel should have no problem obtaining
immunities equivalent to those according to the
administrative and technical staff (A and T status) of a
Diplomatic Mission under the Vienna Convention. (In effect,
this enables U.S. personnel to avoid Peruvian jurisdiction
and civil/criminal charges from actions taken in the line of
duty.)

-- Peru already recognizes US drivers licenses for 90 days, a
time period which covers almost all exercises and deployments.

--Recognition of U.S. professional licenses should not be a
problem, but the Ministry of Health requires a formal
accreditation process.

--U.S. Armed Forces personnel can wear uniforms and bear arms
when carrying out their official duties.

--Tax exemptions for imports or exports of personal property,
equipment, supplies, training, etc. by U.S. personnel
involved in approved deployments should not be a problem,
since the Embassy already enjoys this privilege, though it
would have to be coordinated ahead of time through the Office
of Privileges and Immunities at the Ministry of Foreign
Affairs.

-- U.S. military forces already enjoy freedom of movement and
use of the radio spectrum. Bellina did not think it would be
difficult to spell out these items in future diplomatic
notes. He did say, however, that access to the radio
spectrum needed to be further detailed. The present text
says that U.S. Armed Forces "can use the radio spectrum." He
suggested that this be changed to read that the U.S. would do
this "in consultation with the Government of Peru."


5. (SBU) Bellina said that the following items are likely
negotiable:

--Yearly agreements that list a series of exercises and
deployments with weapons.

--Exemption from Customs charges or inspections would be
possible, but would require previous coordination with
Customs.

--U.S. aircraft and vessels could likely be freed from
boarding and inspection, though Bellina recommended that we
add language stating that this exemption applied &when on
official duties in Peru8 and that such exemption would be
obtained "with prior coordination" between the USG and the
GOP.

--The United States "shall pay reasonable charges for
services requested and received at rates no less favorable
than those paid by the Armed Forces of Peru."


6. (SBU) Bellina said the following would be difficult to
achieve:

--Having US Military personnel enter Peru with only United
States identification and travel orders. Bellina said that
since the immunities granted to U.S. personnel are based on
the Vienna Convention, and hence on status as administrative
and technical personnel attached to the Embassy, they must
have a passport with an official visa to have A&T status.

--Peru will not agree to explicit language that gives the USG
exclusive criminal jurisdiction over U.S. military personnel
while they are in the country, since this would appear to
derogate the powers of the Peruvian courts. Instead, he
pointed out, A&T status essentially grants the same
privileges, but does so by offering immunity rather than by
canceling or limiting Peruvian courts' criminal jurisdiction
over DOD personnel in Peru's sovereign territory. To do the
latter would require constitutional changes, to which the
Peruvian Congress would never agree, Bellina concluded.

--Exemption from all tolls and transit fees would be
difficult to achieve, since some such fees are levied by
private owners like Jorge Chavez airport or the Port
Authority (ENAPU),both independent corporations. Peruvian
government official vehicles, with the exception of police
vehicles or military troop transports, pay road tolls. U.S.
vehicles escorted by Peruvian police and military vehicles
would likely be waved through, but a permanent exemption
would be difficult to achieve since MOD and Armed Forces
vehicles pay tolls.

--Bellina said that tax exemptions for articles and services
acquired in Peru and for those acquired by contractors would
be difficult to achieve. He said the GOP would need to get a
legal opinion on how this would be squared with Peru,s tax
laws. Regarding exemptions for US contractors, Bellina asked
if the phrase referred to anyone contracted by the U.S. or
U.S. citizen contractors.


7. (SBU) On this last point, the Department,s text needs
clarification. Bellina stated that this type of exemption
should be possible for U.S. citizen contractors, but not for
Peruvian or third country national contractors. He mentioned
that we might present all DOD purchases as U.S. Embassy
purchases to take advantage of the tax benefits already
granted to the Embassy by the 1993 exemption law.

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Comment:
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8. (SBU) In contrast to an initial early December meeting in
which Bellina was dismissive of a SOFA based on the draft
model text, in the December 20 meeting we found encouraging
elements in Bellina's list, particularly in Peru's commitment
to hiring an international jurist. His comments are
especially germane given that he was the Director for
National Security and Defense in the Ministry of Foreign
Affairs prior to assuming his current position as political
advisor to the Minister of Defense. A professional diplomat
who knows the nuances of Peruvian law, Bellina understands
the larger context of what we are requesting in this SOFA
text.
POWERS