Identifier
Created
Classification
Origin
09TASHKENT268
2009-03-11 13:48:00
CONFIDENTIAL
Embassy Tashkent
Cable title:  

Discussion With Uzbek FM on Afghanistan Transit: Defining

Tags:  PGOV PREL MARR UZ 
pdf how-to read a cable
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O 111348Z MAR 09
FM AMEMBASSY TASHKENT
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0587
INFO AFGHANISTAN COLLECTIVE IMMEDIATE
RHEHAAA/NSC WASHINGTON DC IMMEDIATE
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C O N F I D E N T I A L SECTION 01 OF 02 TASHKENT 000268 

SIPDIS SIPDIS;SIPDIS
SENSITIVE
SIPDIS
DEPARTMENT FOR SCA/CEN
TRANSCOM FOR POLAD
CENTCOM FOR POLAD

E.O. 12958: DECL: 2019-03-11
TAGS: PGOV PREL MARR UZ
SUBJECT: Discussion With Uzbek FM on Afghanistan Transit: Defining
Terms

REF: a) DESK-EMBASSY TASHKENT E-MAIL OF 3/11/09
b) UZBEK MFA DIP NOTE 05/6045

TASHKENT 00000268 001.2 OF 002


CLASSIFIED BY: Nicholas Berliner, Pol-Econ Chief; REASON: 1.4(B),(D)

C O N F I D E N T I A L SECTION 01 OF 02 TASHKENT 000268

SIPDIS SIPDIS;SIPDIS
SENSITIVE
SIPDIS
DEPARTMENT FOR SCA/CEN
TRANSCOM FOR POLAD
CENTCOM FOR POLAD

E.O. 12958: DECL: 2019-03-11
TAGS: PGOV PREL MARR UZ
SUBJECT: Discussion With Uzbek FM on Afghanistan Transit: Defining
Terms

REF: a) DESK-EMBASSY TASHKENT E-MAIL OF 3/11/09
b) UZBEK MFA DIP NOTE 05/6045

TASHKENT 00000268 001.2 OF 002


CLASSIFIED BY: Nicholas Berliner, Pol-Econ Chief; REASON: 1.4(B),(D)


1. (U) This message contains a request for guidance at paragraph 8.




2. (C) Summary: Talks with the Government of Uzbekistan (GOU) on
the exchange of letters for the transit of non-lethal cargo to
Afghanistan have come very close to success, but we are not there
yet. Politically, the GOU is committed to facilitating transit, a
position that President Karimov made clear to General Petraeus and
that he reiterated publicly in late February. The principal
obstacle to concluding an agreement relates to Uzbek concerns that
private shipping companies (and therefore the USG) be accountable
for compliance with Uzbek laws and regulations. The Ambassador met
with Uzbek Foreign Minister Norov on March 11 to clarify the U.S.
position and seek a better understanding of Uzbek concerns on this
point. Although this is an important issue for the GOU, Norov
pointed to what may be a differing interpretation of the meaning of
the text that could be clarified through careful redaction. What
was abundantly clear from the meeting was that the Uzbeks consider
this to be a binding agreement, at least in the political sense of
that term. It is Post's considered judgment that any effort to
characterize the agreement as a whole as "non-binding" will be
rejected by the Uzbeks and would erode the trust that is essential
in order to win their cooperation on transit. End Summary.



Uzbek FM Says Transit Arrangement More Political Than Legal

-------------- --------------


3. (C) Seeking to clarify the U.S. position on the question, the
Ambassador met for over an hour with Uzbek Foreign Minister
Vladimir Norov on March 11 to discuss the way forward. The

Ambassador explained to Norov that the USG cannot assume legal
liability on behalf of a third party and that, for this reason, it
is impossible to accept the language the Uzbek side has proposed.
Norov said that the GOU does not interpret the language in
paragraph 5 of the draft to be legally binding on the USG as it is
written in its Russian version. He said that the language in
paragraph 5, from the Uzbek perspective, means that the USG will
take it upon itself to make sure through contracts, inspections or
other measures that the contractors it hires will comply with Uzbek
laws and regulations, the provisions of which he said are laid out
previously in paragraph 4 of the draft text.




4. (C) Norov added that the Uzbek concern is that, while it will
have visibility into contracts concluded between the shipping
companies and local Uzbek handlers or forwarders, it has no
visibility into the contracts that the USG concludes with
commercial shippers. He said that, since the GOU has no contract
with these shipping companies, its only recourse in the case of a
violation of the terms and conditions of the agreement (he
mentioned the lading of non-approved lethal cargo in this context)
is with the USG. He emphasized, however, that this recourse was
political, as there was no legal consequence of non-compliance
since no court would have jurisdiction over a political agreement.



Lost in Translation

--------------


5. (C) Norov returned repeatedly to the interpretation of the
Russian verb "obespechivat" which he said implied a commitment that
is short of legally binding, but which for the Uzbeks is the
operative word in paragraph 5. "Obespechivat" can have a number of
different meanings in Russian, among which are "secure,"
"guarantee," "ensure," "furnish" or "make provision for." Although
in the strictest sense, "obespechivat" does imply a guarantee,
there could be room for a more liberal translation of this term in
English so that the text would read, "When conducting transit of
goods, the American Participant and the expediting company WILL
MAKE PROVISION FOR compliance with the requirements of the

TASHKENT 00000268 002.2 OF 002



Agreement of International Good Transport by Rail (AIGTR),
legislation of the Republic of Uzbekistan as well as other
normative acts applied to the Uzbek railways and roads, including
the sanitary-epidemiologic standards of the Republic of
Uzbekistan." Such a formulation in English would retain its
current construction in Russian. Accepting as Norov said that
there is no legal mechanism for enforcement of the exchange of
letters between the USG and the GOU, this would underscore the
"non-binding" political nature of this text without explicitly
saying as much.




6. (C) Based on Norov's stated concern that the text make provision
for compliance with Uzbek laws and regulations and that it is the
responsibility of the USG to ensure such compliance, the Ambassador
suggested additional language to clarify this issue. This language
would read along the lines of, "When conducting transit of goods,
the expediting company is to comply with the requirements of the
Agreement of International Good Transport by Rail (AIGTR),
legislation of the Republic of Uzbekistan as well as other
normative acts applied to the Uzbek railways and roads, including
the sanitary-epidemiologic standards of the Republic of Uzbekistan.
THE AMERICAN PARTICIPANT UNDERTAKES TO RESPECT THE LAWS OF THE
REPUBLIC OF UZBEKISTAN IN ALL ASPECTS RELATING TO THE TRANSIT OF
GOODS UNDER THIS AGREEMENT AND, IN ACCORDANCE WITH U.S. LAW, TO
MONITOR THE EXPEDITING COMPANY'S COMPLIANCE WITH THE PROVISIONS OF
THIS PARAGRAPH."



Non-Binding is a Non-Starter

--------------


7. (C) We do not know if the GOU will accept either of these
formulations, but believe that there is still room for language
that will respect our red lines and, at the same time, give the
Uzbeks the assurances they seek. However, we do not believe that
the GOU will accept characterization of the overall agreement (or
paragraph 5) as non-binding, despite Norov's statement to the
effect that it is largely political. Compliance with their law is
a key point for the Uzbeks, who remain distrustful of the U.S.
Saying to the Uzbeks that we consider this text to be non-binding
would be tantamount to telling them that we will comply with their
laws and regulations at our own discretion. (In this regard, Norov
is well aware of the significance of "binding" versus "non-binding"
agreements, as we emphasized to him the importance to us of
securing a "binding" exchange of letters last summer on the issue
of international religious freedom.) Uzbekistan may be a country
where the rule of law is weak, but the post-Soviet mindset of its
bureaucracy is highly legalistic. In this context, Norov's
characterization of this exchange of letters as largely political
is accurate. When Karimov stated publicly that Uzbekistan had
agreed to transit, he also added "an agreement was reached ... on
the condition of strict compliance with the laws of the Republic of
Uzbekistan." Neither Norov nor anyone else in the GOU will have
authority to agree to anything short of the terms Karimov set.



RFG on Way Forward

--------------


8. (C) The meeting with Norov concluded with the Uzbeks requesting
input from Washington on possible compromise text, which Norov told
the Ambassador he hoped could be done "soon." Post requests
Washington's guidance on the suggestions in paragraphs 5 and 6
above.
NORLAND

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