ARGENTINA: SECOND DIPNOTE ON TRANSIT OF MAKIN

UNCLAS BUENOS AIRES 000939 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PREL PBTS PHSA MARR PGOV AR SUBJECT: ARGENTINA: SECOND DIPNOTE ON TRANSIT OF MAKIN ISLAND REF: BUENOS AIRES 0928 ¶1. (U) Action Request for Department, see para 5. ¶2. (SBU) Embassy Buenos Aires received a second diplomatic note from the GOA dated August 13 regarding the transit of the Amphibious Assault Ship Makin Island LHD8 through the Strait of Magellan. An Embassy translation of the note follows: Opening salutation. "...and desires to make reference to the transit of the ship, USS Makin Island, through Argentine territorial waters. "As per the diplomatic note of August 12, 2009, the Foreign Minister notes that according to information from the Argentine Navy, the ship was preparing to transit the Strait in the direction of the Pacific Ocean. In this context the Embassy was reminded of the practice of providing information to Argentine authorities in accordance with the Convention on the Law of the Sea and the regulations of the Joint Chiefs of the Argentine Armed forces contained in the "Norms for Embassy Armed Forces Attaches Accredited to the GOA" (Article 2.2.2). "In this case, it is necessary to communicate that on that day the Argentine Navy's observation post at Cabo Virgenes spotted the ship and at 06:48 hours contacted the ship to ask for its identification, which was provided by the United States crew to the observation post. The USS Makin Island continued its passage and left Argentine territorial waters for those of Chile. "This episode constitutes a violation of the applicable international norms, in that the named vessel entered Argentine territorial seas without having notified its intentions prior to its passage through this maritime space. "The Government of Argentina recalls that in the past the United States Navy has observed said norms without exceptions. "For this reason, the Government of Argentina manifests its formal protest, at the same time urging the USG and particularly the U.S. Navy to comply with applicable norms. That would contribute to keeping military cooperation within the positive and constructive framework that both nations promote." Closing Salutation. ¶3. (SBU) Although the first note of August 12, per reftel, was delivered to CDA at a point when GOA authorities knew that the ship had already passed through the east end of the Strait, it was written as if the ship was preparing to pass through but had not yet done so. (CDA was told that the note had been transmitted on August 12, before the ship approached the straits, but the Embassy did not receive a note on that date.) The second note, translated above, records the GOA protest over the ship having completed the transit. ¶4. (SBU) Embassy has information about the sequence of communications at the entrance to the Strait that differs from that presented in the Argentine note. The referenced Joint Chiefs of the Argentine Armed forces regulation titled the "Norms for Embassy Armed Forces Attaches Accredited to the GOA" (Article 2.2.2) is in a 1998 publication that specifies the Argentine procedures for passage of war ships within twelve miles of the coast in the Strait of Magellan. The salient points of the regulation follow: transiting closer than 12 miles from the Argentine coast in sovereign waters by war ships shall be considered to be a visit by that vessel and will be treated as a visit under established guidelines. Transit of the Strait of Magellan includes expedient and unrestricted navigation by the vessel according to Argentine authorities and all ships must respond to requests for identification being put to them. Warships will state their intentions before transiting the straits as stated on Nautical Chart H-424, first edition, 1984. (Note: The Argentine regulation is not entirely clear but may be interpreted as requiring only a hail and notification by the ship of its intentions at the point of entrance, rather than advance notification through the Defense Attache. End Note.) ¶5. (SBU) Action Request: Embassy requests Department guidance on how to respond to the two diplomatic notes, including cleared language to utilize. If our view is that the Strait's status as an international waterway precludes the necessity of advance notification, then we recommend communicating that clearly in the response. If there is room to establish a practice of voluntary notification, even if not required, that should be conveyed. If the matter is open to differing interpretations, then Embassy recommends a response offering further consultations on the matter. KELLY