US embassy cable - 05MADRID1346

UNCLAS MADRID 001346 
 
SIPDIS 
 
SENSITIVE 
 
DEPARTMENT FOR OES/OA AND EUR/WE 
 
E.O. 12958: N/A 
TAGS: KRVC, KTIA, PHSA, SENV, SP, Other 
SUBJECT: SPAIN CONFIRMS NEED FOR DIPLOMATIC CLEARANCE 
REQUEST FOR U.S. COMMERCIAL VESSEL 
 
REF: SECSTATE 52463 AND PREVIOUS 
 
1.  (U) ECONCOUNS and ESTHOFF made reftel points April 7 to 
MFA International Economic Affairs Director General (A/S 
equivalent) Emilio Fernandez-Castano, urging Spain to not/not 
require a formal diplomatic clearance for 3U Technologies or 
other future U.S. commercial enterprise vessels operating 
within Spain's Exclusive Economic Zone (EEZ). 
Fernandez-Castano, who was joined by MFA Deputy Director 
General Pablo Montesino-Espartero and Coordinator for Land, 
Sea and Air Issues Juan Luis Munoz de Laborde Bardan, said 
that while his office sought to foster a more intense 
economic relationship with the U.S., and thus viewed 3U's 
project in a positive light, a review by the MFA's lawyers 
had indicated that a diplomatic clearance request would be 
required before the GOS could authorize 3U's activities. 
 
2.  (U) Fernandez-Castano said Spanish legislation 
implementing Law of the Sea Treaty (UNCLOS) obligations 
required a clearance in 3U's case.  The MFA had reviewed in 
detail 3U's proposed activities and had determined that they 
do not/not qualify for the UNCLOS exemptions for commercial 
cable laying and maintenance vessels.  Fernandez-Castano 
argued that these exemptions were for vessels that would lay 
or maintain communication cables that would actually connect 
persons/entities and could not be applied to vessels like 3U 
that would lay and test temporary cables as part of 
experimental research.  Thus, the MFA does not/not accept the 
argument made in reftel nonpaper that 3U's venture is "purely 
commercial."  Spain believes the endeavor includes "research" 
elements and thus requires a formal diplomatic clearance 
request. 
 
3.  (U) Elaborating on his point, Fernandez-Castano 
repeatedly stressed that the U.S. is a friend and ally of 
Spain and that Spain wants more intensive commercial ties 
with the U.S.  The problem, he explained, was one of legal 
precedent.  Were Spain to permit 3U to operate without a 
diplomatic clearance, vessels from other less friendly 
states/entities (he mentioned China and North Korea as 
examples) could then try to operate within the Spanish EEZ 
without prior notification.  Spain would thus hold firm to 
its request for a diplomatic clearance request for 3U. 
 
4.  (U) De Laborde said that his office, in hopes of speeding 
the approval process, had sought the requisite 
inter-ministerial clearances for 3U, even though the MFA had 
not yet received our diplomatic clearance request.  He 
reported that he had received all the necessary written 
clearances except for that of the Ministry of Defense.  He 
indicated that he had received a verbal clearance from 
Defense and was simply waiting for the written confirmation. 
De Laborde suggested that should the U.S. agree to make a 
diplomatic clearance request for 3U, his office would approve 
it within days (not weeks).  Fernandez-Castano reiterated 
that the approval of 3U's activities is not in question; they 
would be approved.  Spain simply needs a diplomatic note to 
protect its legal equities. 
 
5.  (SBU)  COMMENT:  Embassy Madrid believes that Spain will 
hold firm on this issue and will not permit 3U to operate 
without a diplomatic clearance.  We recommend that the 
Department authorize this Embassy to deliver the diplomatic 
clearance note as requested by the GOS.  Given our legal 
disagreement with Spain over whether 3U's activities should 
require a diplomatic clearance, we presume it would be 
possible to caveat such a clearance request with language 
that would serve to defend U.S. legal equities vis-a-vis 
UNCLOS interpretation.  3U is losing money every day that 
this drags on.  We would hope the Department could find a way 
to continue to engage Spain over this set of issues without 
damaging U.S. corporate interests. 
MANZANARES