USE OF RECIPROCITY IN THE UN CONTEXT

C O N F I D E N T I A L USUN NEW YORK 001160 SIPDIS SIPDIS DEPT FOR IO/UNP; L/DL; DS/OFM AND AF/E E.O. 12958: DECL: 12/12/2012 TAGS: OFDP UN ER SUBJECT: USE OF RECIPROCITY IN THE UN CONTEXT ¶1. (C) The Permanent Mission of Eritrea to the United Nations has been seeking to sell its current office space in New York and use the proceeds of sale to purchase alternate, smaller office premises along with a new official residence. The Department denied Eritrea's requests of February 2003, March 2004, and June 2006 on grounds of reciprocity, but the replies did not cite reciprocity as a basis because the United Nations has long taken the position that application of reciprocity is inconsistent with U.S. treaty obligations. The Eritrean PermRep has long suspected that reciprocity is indeed in play, and so wrote to the Chairman of the UN's Committee on Relations with the Host Country in November 2006 to ask that the issue be placed on the Committee's agenda. The Chairman has not done so, preferring to give the USG time to address the issue internally. The Eritrean Mission has now tabled a generic request for property purchase, and if approval is not given, will take the issue to the Committee. ¶2. (U) For more than 20 years, the USG has not asserted reciprocity in the UN context. This has arisen in a number of contexts over the years including the application of the Foreign Missions Act. In 1983, the full Host Country Committee asked the United Nations Legal Counsel to render a legal opinion on the legality of the Act. This opinion examined, inter alia, the issue of reciprocity. The UN Office of Legal Affairs took the view that "(T)he Charter of the United Nations and the Headquarters Agreement therefore do not permit selective treatment of the representatives of Member of the United Nations on the basis of reciprocity" (1983 UN Juridical Yearbook). ¶3. (C) If the Department denies the Eritrean property purchase request, the Eritrean PermRep is likely to tell the Committee that the USG is using reciprocity as a rationale for denial, citing, as necessary, the position of the Eritrean Government on property purchase by foreign governments in Asmara. In the ensuing discussion, Committee members will undoubtedly cite the above mentioned legal opinion which dealt specifically with Section 205 of the Foreign Missions Act. A U.S. defense that property purchase is a privilege rather than a right is unlikely to convince the Committee that despite the OLA opinion, it is permissible to apply reciprocity in real property cases. The Committee will then almost certainly either ask the host country to abide by the decision and permit Eritrea to purchase property, or vote to send the issue to the full General Assembly with a view to deciding whether or not the matter should be referred, under Article 96 of the Charter, to the International Court of Justice. In view of this long standing legal opinion and U.S. practice of refusing to invoke reciprocity over the last 20 years or more, USUN requests that Department consider implications of this issue being referred to ICJ and prospects for U.S. position prevailing there. Khalilzad