EU NON-PAPER REQUESTING PARTICIPATION IN PSI

C O N F I D E N T I A L USEU BRUSSELS 000716

SIPDIS

EUR/ERA, ISN/CPI

E.O. 12958: DECL: 05/13/2018
TAGS: PARM MNUC PREL KNNP EUN
SUBJECT: EU NON-PAPER REQUESTING PARTICIPATION IN PSI

Classified By: Classified by POLMINCOUNS Larry Wohlers, for
reasons 1.4(b) and (d).

1.(C) In a May 12 meeting with CDA Murray, Annelisa
Gianella, EU Special Representative for Non-Proliferation,
provided the attached non-paper on the EU's request to
participate in the Proliferation Security Initiative with a
view toward U.S. positive consideration of the EU's request
for an invitation to the May 28 PSI 5th anniversary plenary
meeting. Gianella claimed that all EU member states support
an EU delegation seat at the PSI table, including especially
Germany, Italy and France. However, she conceded that the
UK had reservation in deference to U.S. concerns. She noted
that the paper was not cleared formally by the Commission or
EU member states, but should be regarded as an informal
submission by the Council Secretariat with input from the
Commission.


2. (C) Department may recall that Gianella had promised the
non-paper to Acting A/S McNerney during recent US-EU Troika
meetings on non-proliferation in Brussels (to be reported
septel). In that meeting, McNerney had advised Gianella to
address U.S. concerns that EU participation would
unnecessarily bureaucratize the PSI. Despite Gianella's
description of the non-paper as "pragmatic" and not
"legalistic," it does not appear to address U.S. concerns
directly. The discussion focuses on now-familiar EU
arguments that it provides the capacity-building expertise
and enforcement of existing EU regulation in PSI-related
areas such as law enforcement and export controls. While not
stated explicitly in the paper due to possible member states
sensitivities, Gianella further argued that EU participation
in PSI would be useful to spur smaller EU member states to
become more active on these issues, including closer
cooperation with the United States in this regard. She did
not provide concrete examples in the meeting or in the paper.
CDA Murray undertook to convey the non-paper to Washington,
but demurred on the possibility of change in the U.S.
position on EU participation in the May PSI meeting.


3. (SBU) Begin Text of EU non-paper:

EU PARTICIPATION IN PSI

I) Why PSI would gain from an EU participation in its own
right

Five years after the launch of the Proliferation Security
Initiative (May 2003) there is still an uncertainty as to the
role the EU could play in PSI. Up to now the operational
character ("activity") and the wish to avoid a heavy
mechanism has led to the result that only individual Member
States of the EU are members. The representatives of EU
institutions have only been allowed to participate as members
of a delegation of an EU Member States. This practice does
not reflect the real role which the EU plays in areas which
are key to the initiative and overlooks that many areas which
are at stake are not any longer dealt with by individual
Member States. Therefore Member States have repeatedly
expressed their wish to see the EU level/institutions
participate in its own right, since it is not possible for
them to deliver individually on issues of common EU policy
(some of which, such as the common commercial policy, fall
under the exclusive Community competence) or where the EU has
an added valued in ensuring a coordination. They wish to see
the EU represented in PSI in the same way as it is already
the case in GICNT.

II) Examples of areas of common activities at the EU level,
which are no longer dealt with exclusively at the level of
individual EU Member States

The EU Member States have transferred important tasks to the
EU level. This means that European activities which are key
to PSI have their center of gravity in Brussels.

1) Common definition of Foreign and Security Policy
priorities of the EU by the Council, such as:

a) how to concretely implement the EU WMD Strategy and
various actions contained therein, which also fall under UNSC
Resolution 1540,

b) how to direct EU efforts towards common aims (in
particular implementation of the EU/US Joint work programme
of 2005 specifically mentioning EU-US cooperation in
advancing PSI through the enhancement of capabilities, laws
and regulations to improve our readiness for interdiction
actions and by encouraging PSI countries to support enhanced

cooperation against proliferation networks, including tracing
and halting transactions related to proliferation),

b) definition of contents of EU sanction regimes following
UNSC resolutions,

c) geographical priorities for outreach activities and
assistance programmes,

d) definition of negotiation mandates for future agreements
between EU and third countries.

2) Adoption of Community legislation by the Council of the EU
(and the European Parliament),which is directly binding for
all 27 Member States. Some examples relevant for PSI:

a) Customs legislation
b) Transport legislation
c) Trade policy
d) Internal Market legislation (binding rules for the limits
and freedoms of economic flows of goods, services and persons
within the EU)
e) Export controls: binding legislation on dual-use items and
technology
f) Proliferation finance (European Commission is a full
member of the Financial Action Task Force)

3) EU institutions are also implied in the implementation of
the EU's decisions and in charge of ensuring that Community
legislation is effectively implemented by our Member States
The Secretary-General of the Council in his function of High
Representative for the CFSP - and his services - assist the
Council in matters coming within the scope of the CFSP, such
as those addressed by the PSI, including through
implementation of policy decisions.

In the sphere of Community law, the Commission ensures that
the Community measures are applied, and it exercises in many
instances the powers conferred on it by the Council for the
implementation of Community rules. If the Commission
considers that a Member State has failed to fulfill an
obligation under Community law, it can commence an
infringement procedure before the Court of Justice of the
Community. If the Member State concerned does not take the
necessary measures to comply with a judgment of the Court in
such procedures, the Commission can ask the Court to impose a
penalty payment on this Member State.

4) The EU runs a whole range of assistance programmes with
substantial financial means, which are directly or indirectly
relevant for non-proliferation (eg. assistance programmes in
order to enhance physical protection, national capabilities
to fight against illicit trafficking, border and export
controls, etc. financed through Joint Actions or Community
Programmes, in particular now the Stability Instrument).

III) Practicalities: a direct participation of EU
institutions would be the most efficient and operational way
to ensure a rapid and concrete European contribution to PSI

All members of PSI, including those which are Member States
of the EU, are interested in making this initiative
result-oriented and practical. Talking to 27 individual
Member States, while excluding the EU institutions (which
hold keytasks and responsibilities) is certainly a
complicated and cumbersome way to try to ensure maximum
output in the fields mentioned above. It would clearly be
more efficient to involve also EU actors directly, who will
ensure that relevant political decisions and pieces of
legislation are being fed into the EU machinery at the right
juncture, who will look after the implementation in Member
States afterwards and who are steering relations with
relevant third countries.

In practice this would mean that there would be one single
delegation of the European Union, which would include senior
officials or experts from the Council Secretariat and the
European Commission according to the level required and the
issue to be discussed. The EU Delegation would intervene on
issues on which the EU exercises a role.

This should not be seen as an exception to the rule of not
inviting organisations with no operational role, since EU
Member States have already transferred operational powers in
many important areas to the EU level. This is the main
difference to other international and regional organisations
such as ASEAN and African Union, which do not have any such
powers on behalf of their member states. The "supra-national"
character of the EU/Community indeed is unique and therefore

makes it an important operational (and not purely political)
actor. The weight of the EU has already been taken into
account in GICNT, in which the EU is accepted as observer.
The same reasons should logically apply for PSI.

The EU shall participate in its own right at the PSI Plenary
meeting. Thus far, the Plenary meeting were open to all
states which endorsed PSI interdiction principles, thus to
all EU Member States and the discussion was of a political
nature. The Washington meeting (28 May) which will mark the
5th Anniversary of the PSI could serve as the first
opportunity to grant the EU an official status.

The EU should continue to participate in the European
regional PSI meetings, such as in Hamburg in 2005. A
valuable operational contribution of EU institutions to PSI
was recognized at the Hamburg meeting.

The EU should also participate in the operational experts
meetings (in the Legal and Law Enforcement Groups with
Commission and Council Secretariat experts, and in the
Intelligence Group with Members of the Joint Situation
Centre) to the extent to which it can contribute to the
discussions in accordance with its tasks and competencies.

END TEXT OF NON-PAPER.



MURRAY