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