US embassy cable - 03THEHAGUE2289

C O N F I D E N T I A L THE HAGUE 002289 
 
SIPDIS 
 
FOR THE SECRETARY FROM OPCW AMBASSADOR JAVITS 
 
E.O. 12958: DECL: 09/11/2013 
TAGS: PARM, PREL, CWC, ILO, UN 
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC): RESPONDING TO 
THE ILO JUDGMENT ON FORMER OPCW DIRECTOR-GENERAL BUSTANI 
 
Classified By: Ambassador to the OPCW Eric M. Javits for reasons 1.5 b) 
 and d). 
 
This is CWC-88-03. 
 
1.  (C)  As you consider the U.S. response to the ILO's 
egregious decision regarding former Director-General of the 
Organization for the Prohibition of Chemical Weapons (OPCW) 
Jose Bustani, I want to provide my thoughts, as your eyes and 
ears on the ground, on the key U.S. interests involved with 
this important issue.  Let me assure you that the 
overwhelming view among the OPCW delegations is that the 
ILO's decision is simply wrong, and none of the 
representatives wishes to pay the judgment to Bustani. 
However, there is an equally strong sentiment that the OPCW 
response must indicate respect for the rule of law, and that 
a critical precedent will be set by the response of member 
states to the ILO decision.  The overwhelming view here, 
which I share, is that ignoring the judgment would harm the 
stature and reputation of the OPCW, and would permit a 
dangerous precedent to stand regarding the operations of 
international organizations. 
 
2.  (C)  The general sentiment, and my own recommendation, 
is that the ILO decision not be allowed to stand.  It needs 
to be fought, rather than flaunted.  That would mean seeking 
an appeal of the decision to the International Court of 
Justice (ICJ), particularly on two points.  First and 
foremost, the ILO decision was "ultra vires" in "setting 
aside" the political decision of States Parties; i.e., the 
ILO had no right to adjudicate the case.  The ILO decision 
that Bustani was "staff" is patently absurd.  If 
unchallenged, it sets the precedent that States Parties lose 
the ability to remove the politically appointed head of an 
international organization.  The decision therefore has to be 
contested to ensure the proper political control and 
leadership of international organizations, including the UN. 
 
3.  (C)  Second, it is important to challenge the material 
damage award provided by the ILO, which constituted 
procedural error in specifying and assessing material damages 
amounting to a "windfall".  Allowing a windfall, in any case, 
falls clearly under a "moral" and not a "material" damage 
category. 
 
4.  (C)  In short, there is a general consensus in the OPCW 
that the Organization should go to the UN and seek permission 
to appeal the ILO decision to the ICJ.  If the UN denies that 
permission, then we are in a better position to protest the 
denial and politically reject the decision.  If the UN 
accedes to the request, then the OPCW can and should 
challenge the decision in the ICJ on jurisdictional and 
procedural grounds.  I would imagine that, in view of the 
interests of other States Parties and organizations to remove 
this appalling precedent, we could encourage the filing of 
"amicus curae" briefs from other international organizations 
(and member states thereof) who share our interest in 
ensuring that there is no doubt about the right of member 
states to remove the head of an international organization. 
 
5.  (C)  I recognize that the outrageous decision by the ILO 
may have generated some support to simply turn our backs on 
the judgment, and the ILO.  However, I would assert that, 
especially because it is so outrageous, it is critical for 
the U.S. and others not to let it stand.  The U.S. has an 
interest in ensuring that the OPCW is not seen as an 
organization ready to ignore a decision that it does not 
like.  But more important, the U.S. has an interest in not 
permitting this precedent to stand unchallenged and in 
ensuring that the leadership of international organizations 
remain accountable to the member states.  By pursuing its 
appeal remedy, it will be easier, at a later date, to seek 
consensus to contract with another mediating body to handle 
staff labor disputes, a position that will be weakened if the 
Organization ignores the ruling in the Bustani case. From the 
center of this storm, I would urge that we fight the ILO 
decision, rather than walk away from it. 
 
6.  (U)  Javits sends. 
 
SOBEL