ANOTHER CAFTA REFERENDUM GAMBIT

UNCLAS SAN JOSE 000005

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR WHA, WHA/CEN, WHA/EPSC AND EEB; PASS TO
USTR:AMALITO, DOLIVER

E.O. 12958: N/A
TAGS: CS ETRD PGOV PINR PREL SENV
SUBJECT: ANOTHER CAFTA REFERENDUM GAMBIT

REF: A. A) 2007 SAN JOSE 2070 AND PREVIOUS


B. B) SAN JOSE-WHA/CEN EMAIL OF 12/31/07


1. (SBU) SUMMARY: The Supreme Election Tribunal (TSE)
accepted a petition to collect signatures for another
CAFTA-related referendum, this one to ratify the UPOV (Union
for the Protection of New Varieties of Plants) Convention and
to approve related legislation. The Convention and
legislation must be approved as part of the GOCR,s overall
CAFTA implementation package. GOCR officials criticized the
move as a politically-motivated delaying tactic, and
reiterated the GOCR,s commitment to complete the full slate
of implementing legislation by the March 1 EIF deadline. The
three environmental NGOs which filed the petition plan to
collect the required 133,545 signatures as quickly as
possible, but their efforts may be moot. The TSE also
announced that the next referendum cannot be convoked before
July 7, 2008, which should give the GOCR more than enough
time to complete the implementing legislation before then.
Broader anti-CAFTA groups see the UPOV referendum as one more
way to kill CAFTA, and the opposition PAC party may use the
TSE ruling to justify further delaying tactics. With

SIPDIS
sufficient discipline and focus in the legislature, the UPOV
maneuver should not be more than a distraction for the GOCR.
However, even without a new referendum, the legislature
returns to work today facing considerable challenges to
completing its CAFTA-related work on time. END SUMMARY.

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ANOTHER YEAR, ANOTHER REFERENDUM?
====================================


2. (U) On December 28, the TSE announced that it had
accepted a petition filed by three local environmental NGOs
to collect signatures for another CAFTA referendum, this one
to ratify the UPOV (Union for the Protection of New Varieties
of Plants) Convention and to approve related implementing
legislation. (The TSE actually ruled on December 21, but the
story did not surface for one week.) The UPOV Convention and
related legislation must be approved as part of the GOCR,s
overall CAFTA implementation package.


3. (U) The few GOCR officials available for comment during
the year-end holidays were critical. Legislature President
Francisco Pacheco told the media that the move was clearly a
"delaying tactic designed to derail" CAFTA implementation,
and a "discredit" to the October 7 overall CAFTA referendum.
Vacationing in Guanacaste, Minister of the Presidency Rodrigo
Arias told reporters the move was an "abuse" of the electoral
system, adding that the UPOV issue was too technical to be
dealt with in a referendum.


4. (U) Both Pacheco and Arias reiterated the GOCR,s
commitment to complete the full slate of implementing
legislation, including the two UPOV-related items, by the
March 1 EIF deadline and certainly before sufficient
signatures are collected to launch a referendum. Arias
expressed hope that the GOCR would complete the legislation
"in January or the first two weeks of February," a slip from
the GOCR,s previous (and publicly-stated) internal deadline
of 15 January.
=============================
NGOs ANXIOUS TO GET GOING . . .
=============================


5. (U) The NGOs which filed the referendum petition in
November, led by the Costa Rican Federation for Environmental
Conservation (FECON in Spanish),welcomed the TSE ruling.
The text was posted on their websites and blogs long before
the TSE released it officially. The NGOs have vowed to
collect the required signatures as rapidly as possible. The
Referendum Law allows up to nine months to do so, and at
least 5 percent of the national voter registry, or 133,545,
must be collected and validated before a referendum could be
held. (Referenda may be held by collection of signatures, by
legislative action, or by a combination of executive and
legislative action. The latter mechanism was used to convoke
the October 2007 CAFTA plebiscite.)


6. (U) The NGO leaders (including Fabian Pacheco, son of the
former president) hope to mobilize the grassroots "patriotic
committees" which were active in the campaign to say "no" to
CAFTA in October. All three NGOs oppose UPOV on substantive
grounds, largely out of concern that ratifying and
implementing that Convention would "flood" Costa Rica with
genetically-modified agricultural materials.

7. (SBU) However, the broader anti-CAFTA groups (based on
their web postings) see the UPOV referendum as one more way
to kill CAFTA. Signaling a possible opposition tactic in the
legislature, PAC deputy faction head Madrigal has already
publicly praised the TSE decision as another indication of
the "deepening of democracy" in Costa Rica. The PAC website,
meanwhile, has regularly warned of the (genetic engineering
and other) "danger" that might flow from hasty ratification
of UPOV. The PAC-led opposition therefore may try to block
action on the two UPOV-related items, using the call for a
new referendum as further justification to criticize the
Arias administration and a &legitimate8 way to delay
implementation further.

============================================= =
. . . BUT IMPACT ON IMPLEMENTATION MAY BE LIGHT
============================================= =


8. (U) The UPOV referendum maneuver may not have the impact
sought by the petitioners (or the anti-CAFTA forces). TSE
President Luis Antonio Sobrado and Magistrate Max Esquivel
have been quick to stress that the collection of signatures
for a referendum does not impede the regular legislative
process; both may proceed in parallel. (According to the
Referendum Law, the legislative process can only be stopped
when the TSE actually convokes a referendum on the
legislation in question; the TSE reiterated this in its
December 21 decision.)


9. (SBU) Going further, Sobrado emphasized that the UPOV
referendum could not be convoked before July 7, 2008 or take
place before October 7, 2008, i.e., one year from the dates
the CAFTA referendum was convoked and held. (In other words,
the TSE is interpreting the Referendum Law, which says only
that one referendum can be held each year, to mean there must
be one year between referenda.) Under this reasoning, no
matter how quickly the signatures were collected, the UPOV
referendum could not be convoked before July, which would
allow the GOCR ample time to complete all the implementing
agenda, even if an EIF extension were requested, before any
new referendum becomes relevant.

============================================= ====
COMMENT: CHALLENGES ENOUGH EVEN WITHOUT UPOV
============================================= ====


10. (SBU) We view another CAFTA-related referendum in Costa
Rica in 2008 as unlikely, but not totally impossible. With
sufficient discipline and focus in the legislature -- the
same ingredients that have been needed since the beginning of
the CAFTA debate -- the GOCR should be able to withstand the
combination of probable PAC opposition and likely NGO
pressure to hold back the UPOV legislation for approval by
referendum. This latest development should light a fire
under the Asamblea, which ended 2007 sick and tired of
dealing with CAFTA. For that matter, the Costa Rican public
also ended the year under the assumption that their role in
ratifying/approving CAFTA had been completed. It may be
difficult, therefore, for the opposition to drag CAFTA out
for nine more months, but this doesn,t rule out their
trying. And, although we believe the NGOs pressed for the
new referendum out of genuine (if misplaced) concerns about
UPOV, we can easily foresee domestic and international
anti-globalists and anti-free traders jumping on this
bandwagon to further their broader agenda.


11. (SBU) The legislature returns to work today facing
challenges enough, even without the UPOV referendum maneuver.
Eight items of implementing legislation are pending plenario
action (a drop of one from our previous tally, Ref A),a 9th
is in committee and a 10th has not been introduced. Most/all
of these will likely face review by the constitutional court.
Among these items are the most politically controversial,
including UPOV, IPR, and telecom and insurance sector reform.
PLN faction chief Mayi Antillon and the legislature
leadership has called for a return to the grueling 6 to 7
days a week, three session per day pre-recess schedule, but
the Asamblea may be reluctant to resume that pace quickly (if
at all). We will have a better sense of the GOCR,s and
G38,s thinking for the new year once the major players have
reported back to work. Minister Arias,s comments while on
vacation suggest that political and procedural realities may
be slowing the GOCR,s ambitious legislative timetable.

BRENNAN