US embassy cable - 05BOGOTA6382

UNCLAS SECTION 01 OF 02 BOGOTA 006382 
 
SIPDIS 
 
 
E.O. 12958: N/A 
TAGS: KJUS, PREL, PGOV, CO 
SUBJECT: Colombian FM Defends Immunity 
 
1. (U) Summary.  On June 27, Colombian Foreign Minister Carolina 
Barco responded to Inspector General (Procurador) Edgardo Maya's 
written request to submit for congressional approval the 1974 
"Agreement between the Government of the Republic of Colombia and 
the Government of the United States related to an Army Mission, a 
Navy Mission, and an Air Mission of the Military Forces of the 
United States of America in the Republic of Colombia."  Maya's 
message was sparked by his interest in charging U.S. military 
officials implicated in narcotrafficking and munitions sales 
earlier this year under Colombian law.  Barco makes it clear 
that, based on multiple international conventions and agreements, 
the soldiers cannot be tried under Colombian law and that the 
agreement will not be submitted to Congress.  She passed a copy 
of her response to the Ambassador on June 28 for our records. A 
scanned copy has been sent to WHA and L.  End summary. 
 
2. (U) Begin unofficial translation: 
 
Bogota, June 27, 2005 
 
Mr. EDGARDO JOSE MAYA VILLAZON 
Inspector General 
Inspector General's Office of the Republic 
City 
 
 
Honorable Inspector General: 
 
With full attention I respond to your note DP-0462 presented to 
the Presidency of the Republic on May 23, related to your request 
to submit for congressional approval, the "Agreement between the 
Government of the Republic of Colombia and the Government of the 
United States related to an Army Mission, a Navy Mission, and an 
Air Mission of the Military Forces of the United States of 
America in the Republic of Colombia," signed in Bogota on October 
7, 1974.  Allow me to transmit the following information: 
 
The Agreement concluded according to the norms in effect at the 
time of signature, such as: 
 
-    Political Constitution of Colombia of 1886, article 120 
  number 20, and article 76 number 18 
-    Law 7 of 1944 
-    Law 24 of 1959 
-    Inter American Treaty of Reciprocal Assistance - IATR, of 
September 2, 1974, approved by the Law 52 of 1947, in force for 
Colombia since December 3, 1948 
-    Havana Convention of 1928 on Rights and Duties of Diplomatic 
  Officials, approved by the Law 41 of 1936, in force for Colombia 
  since February 20, 1937 
-    Vienna Convention on Diplomatic Relations, approved by Law 6 
of 1972, in force for Colombia since May 5, 1973 
 
Likewise, under the observance of the International Customary 
Practices, which is the source of International Law, and in that 
era had some practices codified in international conventions: 
 
  -    Vienna Convention of 1969 on the Law of the Treaties 
     (approved by the Law 32 of 1985, in force for Colombia since May 
     10, 1985) 
  -    New York Convention of 1969 regarding Special Missions 
     (approved by the Law 824, 2003, and ratified by Sentence C-315 o 
     2004, in force for Colombia since November 28, 2004) 
 
According to the rules mentioned above, the Agreement is 
connected to the norms of a Simplified Agreement that, being 
developed and derived from a treaty or a framework agreement 
approved under domestic procedure, and under the observance of 
code custom and the exercise of the Executive's exclusive 
capacity of concerting with other States with credited Missions, 
it neither required nor requires internal procedural approval to 
become valid and to have full application. 
 
Indeed, through the Agreement, the creation of "Special Missions" 
as an expansion of a Permanent Diplomatic Mission, with the 
respective equivalences, can be interpreted from article 11 of 
the Agreement. 
 
It is important to stress that previous National Governments 
agreed with the notion that simplified agreements should take 
place; a premise that has been endorsed by the High Courts, as 
well as admitted and defended by the Inspector General's Office 
of the Nation. 
 
The constitutional and juridical conditions have not varied and, 
on the contrary, International Law and the Law of Treaties have 
evolved, a situation recognized by the Colombian Courts, who have 
developed the concept of simplified agreements fully, reaffirmed 
the principle of exclusion from domestic law official procedures, 
given that the agreement is derived from framework instruments 
and do not create new obligations for the State, or that they are 
executed through duties exclusive to the President of the 
Republic, thus able to become operative and executable starting 
from the moment of signature. 
 
Regarding the possibility of nullifying the Agreement, we 
examined the processes of discussion and execution, and do not 
find that the Agreement falls into one of the nullity clauses 
contemplated in the Vienna Convention of 1969 on the Law of 
Treaties and that could be invoked by Colombia.  Such clauses are 
precise and they cannot be used unilaterally. 
 
Consequently, in light of the rights and principles of the 
International Law when the Agreement became effective, and 
according to the principle "Pacta Sunt Servanda" Colombia's 
compliance with the agreement is mandatory; the Colombian State 
cannot invoke domestic law as a valid cause of non-fulfillment of 
Agreement and international commitments. 
 
Finally, for your information, I have attached a list of the 
agreements submitted for approval by the procedure outlined in 
Law 24 of 1959. 
 
Sincerely, 
 
                        /s/ 
               CAROLINA BARCO ISAKSON 
            Minister of Foreign Relations 
 
End unofficial translation. 
 
3. (U) Embassy has passed a scanned version to L and WHA for 
review. 
WOOD