Identifier
Created
Classification
Origin
07USOSCE366
2007-09-28 12:15:00
UNCLASSIFIED
Mission USOSCE
Cable title:  

OSCE Legal Personality, Round 6 ? Talks Make

Tags:  OSCE KTIA 
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DE RUEHVEN #0366/01 2711215
ZNR UUUUU ZZH
R 281215Z SEP 07
FM USMISSION USOSCE
TO RUEHC/SECSTATE WASHDC 5223
RUCNOSC/ORG FOR SECURITY CO OP IN EUR COLLECTIVE
RHEHNSC/NSC WASHDC
RUEKJCS/DOD WASHDC
UNCLAS SECTION 01 OF 04 USOSCE 000366 

SIPDIS

SIPDIS

FOR L/EUR AND EUR/RPM

E.O. 12958: N/A
TAGS: OSCE KTIA
SUBJECT: OSCE Legal Personality, Round 6 ? Talks Make
Progress As Russian Demand for a Charter Looms

Ref: A) USOSCE 331; B) State 69698 and previous

UNCLAS SECTION 01 OF 04 USOSCE 000366

SIPDIS

SIPDIS

FOR L/EUR AND EUR/RPM

E.O. 12958: N/A
TAGS: OSCE KTIA
SUBJECT: OSCE Legal Personality, Round 6 ? Talks Make
Progress As Russian Demand for a Charter Looms

Ref: A) USOSCE 331; B) State 69698 and previous


1. Summary: Meeting for the first time since July, on
September 13-14 the Working Group on the Convention on
Legal Personality, Legal Capacity and Privileges and
Immunities for the OSCE (CLPPI) made considerable progress
in removing bracketed text and reaching compromise on
previously disputed issues. Almost all delegations, with
reluctantly accepted addressing the very largely
overlapping privileges and immunities (Ps and Is) of staff
the notable exceptions of Sweden and the UK, at least of
the Secretariat and Institutions and of Field Operations in
separate articles (Articles 14 and 14 bis, respectively).
There was also considerable discussion on what protection,
if any, should be granted to members and staff of the OSCE
Parliamentary Assembly (PA); a possible consensus text
(Article i (j)) handles this through language linked to the
definition of ?Persons Performing Tasks for the OSCE.?
Russia again pressed for reference to a charter in the
convention text, to which the Chair, the US, the UK and
others objected, noting the impossibility of referring to
the text of a document that does not exist. The Russian
delegation has been relatively cooperative and the WG may
well be able to finalize the substantive articles in
October, although Russia has made utterly clear it will
prevent final approval of a text until its demands on an
OSCE Charter are met. On September 18, Russia and its CIS
allies circulated a draft Ministerial decision to establish
a working group to negotiate a charter. This sets the
stage for the next big fight at the Madrid Ministerial.
The next and almost certainly last CLPPI negotiating
session will take place October 14-15. End summary.

Article 14 -- OSCE Officials
--------------


2. On Wednesday, before the WG convened, Belgium called a
small group meeting to discuss its proposal (Ref A) to
include a requirement for an ?internal assessment? in the
convention, which would in essence tax OSCE personnel, with
the money going to the organization. The Belgian DCM said
they had strict instructions from the Ministry of Finance
to include some kind of assessment in the draft or else it
would not be able to support. The UK agreed, since there
was a perception that if there was no assessment, IO staff

would be getting a free ride. The US, represented by L/EUR
Peter Olson, noted that the USG, in contrast to many other
countries, taxes its citizens that work for international
organizations, and insisted that provision be made to avoid
double taxation (i.e., national tax plus staff assessment).
The Dutch and Germans sided with the US. Canada, which
also taxes IO staff, noted that as currently drafted, the
tax exemption would only exist if the staff assessment
does. The US also noted that staff assessments are
normally adopted as internal management decisions rather
than being provided for in treaty text.


3. At the beginning of the WG on Thursday, the Chair, Dutch
Ambassador Ida Veldhuizen-Rothenbuecher, asked the Co-
chair, Austrian MFA Legal representative, Dr. Helmut Tichy,
to explain para 2 bis, concerning tax exemption as
originally proposed by the Belgians (?Officials shall be
subject to a staff assessment for the benefit of the
organization on the salaries? paid to them by the
organziation. Such salaries?shall be exempt from national
income tax.?) After brief discussion, the text was
adopted, with language permitting States to disregard the
exemption (i.e. tax) for their own citizens. There was no
objection and brackets were lifted on the text.

-- Bracketed text providing general immunity from personal
arrest or detention (para 1a) was deleted. The Chair noted
in side conversation her understanding that Armenia, which
was not present, no longer insisted on such language.

-- Azerbaijan, backed by Russia, continued to insist on
deleting the exemption from national service (para 1f),
despite the US observation that para 2 exempted States from
granting that exemption to its own citizens. The text was
bracketed.

-- On para 3, and consistent with its longstanding efforts
to draw distinctions between headquarters and field
operation personnel, Russia insisted on keeping the
brackets on ?and Heads of Mission? regarding the broader
P?s and I?s given senior officials. Reflecting the views
of many, Sweden rejected such differentiation between HOM?s
and heads of institution.

USOSCE 00000366 002 OF 004



-- There was considerable discussion on exemption from
immigration restrictions and alien registration (para 1g),
focussing on whether express acknowledgment of visa
requirements implied a right to deny visas in exceptional
cases. Canada insisted states have no such right; the US,
Germany and others insisted that they must and, under the
existing language, do. The current text was retained, but
there will be different understandings of its meaning.


4. After the UK (supported by Sweden) reiterated its
continuing objection to treating headquarters (Secretariat
and institutions) and field operation staff in separate
articles, the Chair called for a tour de table at which UK
repeated its position. Russia stated that if separate
Articles 14 (Secretariat/ institutions staff) and 14 bis
(field operations staff) were not accepted, Russia would
revert to its earlier (and widely condemned) proposal that
field operations staff be equated to experts on mission.
Virtually all other delegations expressed strong preference
for a single article with reluctant acceptance of separate
articles so long as their substantive content remained
acceptable. The US recalled and underscored the importance
of the decision at the July session to retitle Article 14
"Members of Secretariat and Institutions" (vice "OSCE
Officials") to avoid any invidious implication that
?Members of Field Operations? were not OSCE officials.

Article 4 -- Legal Capacity
--------------


5. Following the observation by the Netherlands and others
that its inclusion would inappropriately and unhelpfully
limit the OSCE's ability to conduct conferences, etc.
outside the OSCE area, bracketed language ?in the
territories of the States Parties? to limit the geographic
scope was deleted.

Article 8 -- Tax Exemptions
--------------


6. Germany, under instructions from its Finance Ministry,
proposed changes to the text on tax exemption from goods
and services. It added language that any goods which the
OSCE has acquired subject to exemption shall not be sold or
disposed of except under conditions laid down by that State
Party. The language is analogous to that found in the ICC
Convention, it said. The Chair expressed her concern that
it will be difficult to get a final decision from
respective finance ministries and asked to leave the
Article as it is. Germany said it would try to make the
argument back in Berlin. The German rep came back on
Friday morning with a proposal for a minor change, which
the Chair recommended be accepted. Further discussion
would take place in October.

Articles 18 ? Entry into force and 20 -- Amendment
-------------- --------------


7. The US requested a statement of Secretariat views on
whether the draft CLPPI could be implemented, both legally
and practically, if only some participating States were
party to it ? i.e., a dual regime. Legal Adviser Sonya
Brander stated that it could, and nnoted that even
currently, the OSCE operates under two de facto regimes, as
some States had taken legal action to implement legal
personality and capacity and Ps and Is for the OSCE as
recommended by the 1993 Rome Ministerial decision while
others had not. At the Chair's request, the Dutch rep
offered a brief discussion of precedents and possible
approaches to the amendment provisions, suggesting an
approach based broadly on the ICC ("Rome") Convention. The
US noted that if, for example, only two-thirds was needed
to adopt an amendment, this could lead to an even greater
splintering of legal regimes, with some States adopting the
convention, others not, and a few having adopted both the
convention and whatever amendments were proposed.

Article 1(j) -- Persons Performing Tasks (OSCE PA)
-------------- --------------


8. The WG revisited the issue of whether members and staff
of the OSCE Parliamentary Assembly (PA) should be given P?s
and I?s and if so, under what circumstances. Discussion
centered a proposal to cover PA personnel as a third
category (with experts on mission and representatives of
the CiO) of "persons performing tasks for the OSCE."
Sweden preferred that the text remain as is, with no

USOSCE 00000366 003 OF 004


mention of the PA. PA Representative Andreas Nothelle said
the PA recognized there were different categories of staff
and they could be granted different levels of protection
but that there should be something in the convention draft
which covers them. Denmark, as host country for the PA,
supported Nothelle?s remarks and observed that the PA was
an integral part of the OSCE. It should therefore not be
included under Persons Performing Tasks but rather be given
a separate article. Canada, by contrast, said the
convention should grant OSCE parliamentarians P?s and I?s
only when they are conducting official business, stressing
that the PA was an autonomous body and acted as it wanted.
Belgium recalled that earlier in the year, the WG had
already considered and rejected a separate Article 16
solely dealing with the PA, and indicated a preference for
having no reference to the PA. The current text was an
attempted compromise. Nothelle said it was important that
the reference to ?OSCE meetings? in the draft should also
include ?OSCE PA meetings? and that the PA be mentioned
specifically somewhere in Article 1.


9. This then led to a lengthy drafting session late
Thursday night and then Friday morning. The new possible
compromise draft specifies that ?Other Persons? would refer
to OSCE experts on mission and representatives of the OSCE
Chairmanship, but addressed PA concerns about subordination
to the executive structures of the OSCE in two ways.
First, PA members and staff would be treated in the same
way as (rather than "being") persons performing tasks.
Second, creatively ambiguous language was adopted extending
Ps and Is to PA personnel taking part in the work of the
OSCE "as identified by" the CiO ? a formulation leaving
deliberately unclear whether the CiO decides when PA work
is to be considered OSCE work, or rather simply accepts PA
decisions in that regard. (As a practical matter, the CiO
retains the authority to decide, but is likely to accept
most if not all PA suggestions for when its work is "OSCE
work.") Following the meeting, Nothelle reported that the
PA president wished further changes, a request most
concerned delegations were resistant to accommodating.

Article 15 bis -- Waiver of Immunities
--------------


10. There was some discussion as to how to waive immunity
for PA members; it was proposed that the OSCE Secretary
General, ?on request? from the PA, would waive immunity.
With respect to waiving the immunity of the OSCE itself,
Russia insisted that neither the SG nor the CiO had
authority to do so, and wanted to seek Permanent Council
approval in such matters beforehand. Canada noted that
this could bog down the PC over relatively trivial
financial matters such as a contract dispute over
stationery or catering supplies; the Chair concurred. Dr.
Tichy proposed ?notification? of the PC; Russia insisted on
?consent of its decision-making bodies," while allowing
that a silence procedure would be acceptable. It pointed
out that the SG is not similar to the UNSG in that the
position heads only the OSCE Secretariat. The Chair noted
that referring such cases to the PC would also infringe on
privacy protection of the individuals involved. The issue
remains unresolved.

Article 5 -- OSCE Premises
--------------


11. The US said that proposed language in Article 5,
regarding waiving immunity, was duplicative of similar
language in Article 7 and could give rise to significant
and unnecessary confusion, and suggested its removal.
After some discussion, it was agreed to delete the
language.

Article 14 bis -- Members of Field Operations
--------------


12. Russia wanted to delete the exemption from national
service obligations, arguing that field operations are
?temporary? thus that its staff did not need the
protections appropriate for permanent staff such as that of
the Secretariat and institutions. The US rejected this
argument, noting that national service generally turns on
residency status and that staff of field operations are
present on a form of residency visa and thus potentially
subject to such obligations. Russia further argued that no
OSCE participating State now subjects foreigners to
military service, to which the US noted that laws can
change and Canada observed that in some provinces local

USOSCE 00000366 004 OF 004


authorities retain authority to conscript residents in case
of natural disasters such as fire or flood. When Russia
refused to back down, the US insisted on bracketing the
national service exemption in Article 14 (Secretariat and
institutions staff) on grounds that any arguments against
the provision for field operations staff were equally
applicable for headquarters staff

Charter
--------------


13. Russia proposed that a footnote proposed by Russia and
Belarus be inserted into the body of Article 4 (Legal
Capacity),so that it would read, ?The OSCE shall possess
such legal capacity as is necessary for the exercise of its
functions [as they are set forth in the OSCE Charter.]? It
also proposed two new paragraphs for the Preamble which
would expressly reference the Charter. The Chair noted
that the WG did not have a mandate to discuss a charter and
that since the charter was non-existent, it would not be
appropriate to submit the convention text to the CiO with
such a reference. The US supported that position, as did
Finland, the UK, Germany, and Denmark. The Netherlands
said it could recall no precedent whatsoever where a
reference was made to a document that did not exist. Spain
agreed that discussing a charter would be beyond the WG?s
mandate. Russia said the OSCE was often ?exceptional? and
that the draft currently referred to staff assessments,
which currently did not exist. Russia also stated that it
could "guarantee" that by the time the CLPPI was finally
adopted a Charter would exist ? meaning that it would
refuse to permit adoption of the CLPPI until a Charter had
first been negotiated. The US made clear that it is
unprepared to consider a Charter. It is likely that, even
if all other text is agreed, the proposed references to the
Charter in the Preamble and Article 4 will remain
bracketed.


14. Shortly after the conclusion of this latest round,
Russia, Armenia, Belarus and the Central Asian states save
Turkmenistan circulated a Ministerial draft decision
calling for the establishment of a working group in 2008
which would draft an OSCE charter to be submitted to the MC
in December 2008. The draft decision included a draft
charter which had been circulated in June (Ref B). The
Russians and their allies will no doubt attempt to use the
convention draft as leverage with participating States,
especially those on the fence, to get them to agree to a
charter WG.

Conclusion
--------------


15. Once again, considerable progress was made in
finalizing the text, leaving a very real possibility that a
complete text will be concluded by the end of the October
session ? complete, that is, with the exception of brackets
around the text proposed by Russia referring to the non-
existent Charter.

FINLEY