RESPONSE TO OLA REGARDING UN ROLE IN COUNTER

UNCLAS STATE 080210 SIPDIS E.O. 12958: N/A TAGS: UNSC PREL PHUM PHSA EWWT KCRM SO XA XY SUBJECT: RESPONSE TO OLA REGARDING UN ROLE IN COUNTER PIRACY EFFORTS REF: USUN 697 ¶1. USUN may draw from the talking points in paragraph 2 with the objective of strongly discouraging UN Office of Legal Affairs (OLA) proposals regarding the UN role in counter piracy efforts. ¶2. Begin talking points: -- As reflected in its prior written communications, the United States strongly discourages any UN Secretariat efforts to develop a "UN model bilateral transfer agreement." Production of a model agreement sanctioned by the UN could cast doubt on any existing arrangements that differ from the UN model. Moreover, any &model8 agreement is likely to be over- or under-inclusive. The advantage of these bilateral instruments is that they address the particular domestic legal and procedural issues that may arise when the participants undertake the transfer of a piracy suspect. Each state may have slightly different requirements. The UK has already provided a template to Contact Group participants to assist countries that are interested in negotiating their own bilateral transfer arrangements. This template serves the purpose of aiding and encouraging countries to enter into these arrangements, but does not impose terms on states the way a UN model agreement could be seen to do. -- We would encourage OLA to attend the next meeting of the Contact Group,s legal working group (WG2) in Copenhagen on August 26-27. The UN and OLA were represented at the last legal working group meeting, and we would hope that they would continue to participate and follow what the legal working group is doing. -- The United States would encourage the OLA to lend the legal working group its expertise with respect to the Terms of Reference that are being developed to establish an International Trust Fund. This Trust Fund is being established to directly support prosecutions. -- We would also encourage OLA to work with the UN Office of Drugs and Crime (UNODC) and International Maritime Organization (IMO) to help coordinate the various judicial capacity-building efforts that are underway. In addition, we encourage the OLA to work with the UNODC and IMO to encourage regional states such as Tanzania to amend their domestic law to permit the prosecution of suspects even when there is no national nexus and to enter into transfer arrangements with interdicting states in order to relieve some of the burden on Kenya. -- The United States would encourage consideration and study by the OLA of the possibilities for the eventual transfer of convicted suspects from Kenya and other prosecuting states to Somalia. We would note that, in our judgment, such transfers are not feasible at the present time, but we would not be opposed to studying the situation and analyzing the circumstances that would be necessary for such transfers to take place. -- Finally, the United States would strongly encourage OLA to support our view that a state should favorably consider prosecuting suspects when it is the flag state of the ship that was attacked, or the vessel was owned or crewed by its nationals. End Points. CLINTON