US embassy cable - 04MONTREAL1464

UNCLAS SECTION 01 OF 03 MONTREAL 001464 
 
SIPDIS 
 
SENSITIVE 
 
FOR IO, EUR and L (JGergin) 
FROM US MISSION TO ICAO 
 
E.O. 12958:  N/A 
TAGS: AORC, EAIR, EU, ICAO 
SUBJECT:   EU Additionality at ICAO:  EC Efforts to obtain 
Observer Status 
 
1.  (U) Summary and action request.  As Department is aware, 
for some time the European Union has been talking with high 
level officials of the International Civil Aviation 
Organization about its desire to have an enhanced and 
permanent presence at ICAO.  Of 36 current Council members, 
8 are from Europe.  ICAO Council President Assad Kotaite has 
told US Permanent Representative Ambassador Stimpson that 
Rule 33 of the Council's Rules of Procedure would permit the 
Council to invite the EC to observe and participate in 
Council meetings on a regular basis when issues are 
discussed over which the EC has competence.  When asked, US 
Mission has explained US policy against EU additionality. 
Mission reading of Council Rules raises a number of 
questions and Post requests guidance from L per para 11 
below.   Kotaite also said that the Air Navigation 
Commission's Rules of Procedure would permit similar 
participation. 
 
2.  (SBU) US Mission has obtained a copy of a letter from 
Kotaite to EC Vice-President Loyola de Palacio containing 
his interpretation of Council and Commission rules.  The 
letter states that there would be "no legal obstacle for a 
delegation of the Commission to ICAO to be established in 
Montreal to represent the interests of the EC."  Text of 
letter is contained in para 13 below.   EC tried to obtain 
diplomatic status through its bilateral mission in Ottawa 
and was turned down.  Meanwhile, the EC continues to look 
for office space at ICAO, and, we understand, hopes to have 
its presence at ICAO established by early Spring. Canadian 
PermRep's personal belief is that some of the Rules of 
Procedure, which were written by Kotaite and increase his 
powers, including the right to invite observers to Council, 
are inconsistent with the Chicago Convention and should 
undergo review.  The Canadian outlined his personal three- 
point strategy.  He recommends high-level bilateral 
(US/Canada) discussions in the near future, and a strong and 
immediate response in opposition should Kotaite 
"accommodate" the EC in a way that bypasses Council 
approval.  End summary and action request. 
 
3.  (SBU) ICAO Council President Assad Kotaite called on 
Amb. Stimpson on Nov. 3.  Among other things, the two 
discussed the EC's request for a more active role at ICAO 
through permanent observer status (with the right to speak). 
 
4.  (U) Background.  The Chicago Convention does not provide 
for "Observer" status. The Council's Rules of Procedure -- 
which were written by Council President Kotaite -- allow the 
Council to invite observers on matters of interest to them. 
Kotaite has a list of organizations from which he chooses to 
send invitations as he feels appropriate (Council members 
sometimes suggest additional observers from Kotaite's list 
for a particular meeting, but getting new entities on that 
list has proven difficult.)  In addition, anyone from the 
public may observe a Council meeting so long as the meeting 
has not been declared "closed" due to the sensitive nature 
of the issue under discussion.  End background. 
 
5.  (U) Kotaite told Ambassador Stimpson that Rule 33 (Rules 
of Procedure for the Council, Doc 7559/6, Sixth Edition, 
1999) would allow the EU to be represented at and 
participate in Council meetings when issues over which it 
has competence are discussed.  The Ambassador reiterated the 
US's strong opposition to EU additionality at ICAO. 
 
6.   (SBU) Alternate US Rep met with Canadian Permanent 
Representative, Ambassador Alain Dupuis on Nov. 9.   Dupuis 
said that the EC had been actively seeking representation at 
ICAO, while President Kotaite had been actively pursuing a 
means to accommodate them.  When he (Dupuis) was Deputy 
Chief of Protocol, the EC had approached him with the 
proposal that it use its bilateral agreement with Canada as 
the basis for obtaining diplomatic status for an EC 
representative to ICAO.  Dupuis responded that under that 
scenario, the EC would have to put its representative in 
Ottawa where s/he would work primarily on bilateral issues, 
and would have to drive on a daily basis to Montreal to 
observe (but not speak at) Council meetings. Otherwise, the 
EC rep would have to be accredited under the ICAO-GOC Host 
Country Agreement.  At the September 2004 Assembly, 
spokesperson on EC Participation in ICAO Ludolf van Hasselt 
said that he was looking for property in Montreal.  Dupuis 
told him he should clear up the bilateral vs. host country 
agreement matters before the EC buys anything to set up an 
office. 
7.  (SBU)  Stressing that the GOC had not yet formulated its 
strategy to deal with potential EC additionality at ICAO, 
Dupuis outlined his own thoughts for a three step approach. 
First there would need to be an EU-wide decision with 
agreement from all member states on EC representation 
throughout the UN system.  Once that decision is 
communicated to ICAO's Secretary General, the second step 
would be Council discussion of the EC's request, where 
Canada would speak as a Council member (as opposed to Host 
Country).  The Council could refer the matter to the Legal 
Committee for review, which "could take years."   Once the 
Council approves the request, it would instruct the 
Government of Canada to accredit the EC under the Host 
Country Agreement (which Canada would "rubber stamp."). 
Dupuis said it was important to delay Council approval at 
least until after the next Assembly (September 2007). 
Dupuis stressed that while we would likely have a number of 
allies from the developing world and perhaps could even 
enlist one or more large EU member countries, one had to be 
extremely careful in how this was handled.  For example, 
developing countries might see the logic of having the EC 
represented at the Air Transport Committee, and once the EC 
is "in," might side with the Europeans on strengthening 
ICAO's air transport functions at the expense of safety and 
security.  Ottawa, he said, wants to be sure that all 
potential ramifications are examined, not only for ICAO but 
for the entire UN system. 
 
8.  (SBU)  When asked about the President's possible use of 
the Rules of Procedure (ROP)  to  "accommodate" the EC and 
circumvent Council debate, Dupuis said that the Council had 
long been acting beyond the authority granted to it in the 
Chicago Convention.  The ROP, written by Kotaite and which 
grant him tremendous powers, need review.  A general review 
could be conducted at any time; but a review targeted at the 
EC should come only after EC observer status has been 
brought to the Council for discussion. 
 
9. (U) US Mission's reading of the Council's Rules of 
Procedure raises questions.  Rules 32 and 33 deal with 
Observers.  Rule 32, which would not apply to the EC, three 
times explicitly authorizes "participation" by certain 
observers.  It states,  "Any Contracting State may 
participate without a vote in the consideration by the 
Council and by its Committees and Commissions of any 
question which especially affects its interests (Article 53 
of the Convention).  The President may invite such 
participation where he considers that the condition of 
special interest is fulfilled.  If a contracting State 
requests permission to participate on the grounds of special 
interest, the President may approve the request if he finds 
that the condition of special interest is fulfilled; 
otherwise, he shall refer the request to the Council for 
final decision." 
 
10.  (U) In stark contrast, Rule 33, which could apply to 
the EC, is silent on the right to participate.  It states, 
inter alia, "a) The Council may invite non-Contracting 
States and international organizations or other bodies to be 
represented at any of its meetings by one or more 
Observers."  Nonetheless, the definitions section of the 
Rules of Procedure appears to build in the right of an 
Observer to "participate" in Council discussion.  It defines 
Observer as "a person representing a Contracting State not 
represented on the Council, a non-Contracting State, an 
international organization or other body, designated and 
authorized by his State or organization to participate in 
one or more of the meetings of the Council without the right 
to vote or to move or second motions or amendments, under 
such further conditions as the Council may determine and 
holding credentials as evidence of his appointment." 
Comment:  In a body such as the Council, where there are no 
votes (except elections) and most decisions are reached by 
consensus, the right to speak is tantamount to a right to 
vote.  End Comment. 
 
11.   (U) Action Request:  Mission requests Department's 
reading of whether Rule 33, as currently written, would 
allow an EC representative to speak at Council and Committee 
meetings. 
 
12. (U) Regarding the Air Navigation Commission, its rules 
permit interested non-members to attend.  Some, such as 
IFALPA (the international pilot's union), actually have an 
assigned seat at the table.  The number of "observers" 
continues to grow, and, given the size of the room, may need 
to be limited in the future.  Increasingly, observers have 
been given the floor to make statements or ask questions, 
which is hampering the effectiveness of the Commission. 
 
13.  (SBU)  Following is  the text of the October 27 letter 
from Kotaite to de Palacio, which the US Mission was given 
in confidence: 
 
I wish to refer to the letter dated 22 April 2004 from Mr. 
Seamus Brennan, Minister for Transport of Ireland, in his 
capacity of President of the Council of the European Union, 
and to the conversations between myself and Mr. Ludolf 
Wihelmy van Hasselt, Representative of the European 
Commission on the subject of a more effective participation 
of the European Community in the work of ICAO. 
 
As you know, the ICAO Council decided in 1989 to include the 
European Community in the list of organizations which may be 
invited to participate in suitable ICAO meetings as 
observer. 
 
The ICAO Council is a permanent body composed of thirty-six 
States elected by the Assembly.  The Council holds 
approximately three sessions per year. 
 
Under Rule 33 of its Rules of Procedures, the Council may 
invite an international organization to be represented at 
any of its meetings by one or more observers.  In addition 
to ad hoc requests from the European Community, should the 
latter desire to send an observer to Council meetings, on a 
regular basis, it could indicate the subjects of interest to 
it among the items included in the work programme of the 
Council for the following session, for decision by the 
Council on representation at such meetings; the Council 
adopts at the end of each session its provisional work 
programme for the next session. 
 
Concerning the Air Navigation Commission, Article 56 of the 
Convention on International Civil Aviation provides that it 
is composed of fifteen members appointed by the Council for 
a period of three years from among persons nominated by 
Contracting States.  Under the applicable Rules of Procedure 
(Doc 8229-AN/876/2), an international organization may be 
invited by the Commission, with the approval of the 
President of the Council, to participate in one or more 
meetings of the Commission. 
 
Certain international organizations which are on the 
aforementioned ICAO list have established resident 
delegation offices in Montreal.  From ICAO standpoint, there 
would be no legal obstacle for a delegation of the 
Commission to ICAO to be established in Montreal to 
represent the interests of the European Community. 
 
I trust that the enhanced cooperation between ICAO and the 
European Community will further contribute to achieving the 
aims and objectives of the Convention on International Civil 
Aviation.  Yours sincerely,    Assad Kotaite  End Text. 
 
14.  (U) US Mission will continue to follow this matter 
closely and will report significant developments. 
 
Stimpson/Allen