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C O N F I D E N T I A L QUITO 000079 
 
SIPDIS 
 
E.O. 12958: DECL: 2020/02/11 
TAGS: MARR PREL KTIA MASS MOPS EC US
SUBJECT: FURTHER DELAYS ON AGREEMENT FOR MILITARY COOPERATION 
 
CLASSIFIED BY: Heather M. Hodges, Ambassador; REASON: 1.4(B), (D) 
 
¶1.  (C) SUMMARY: The DCM and embassy officers met with MFA Under 
Secretary for Bilateral Affairs Leonardo Arizaga on February 10 to 
seek clarification on the reasons for the delay in the GOE's 
signing of a diplomatic note on status of forces for military 
exercises and cooperation.  Arizaga explained that these were 
problems resulting from a review by the MFA's legal department, 
namely that the note, as written, would be subject to ratification 
by the National Assembly, and that "immunities" could not be 
referenced in the text of the note.  Although the GOE appears to 
want to continue with cooperative military activities, further 
delays, or refusal to sign a note, may soon require USG review of 
what activities to continue without protections for military 
personnel.  END SUMMARY. 
 
 
 
¶2.  (C) The DCM and representatives from the Military Group and 
political office met with the MFA Under Secretary for Bilateral 
Affairs, Leonardo Arizaga, on February 10 to determine the reasons 
behind the ongoing delay in the MFA completing an exchange of 
diplomatic notes to provide status of forces protections for 
temporary duty U.S. personnel involved in military exercises and 
cooperation in Ecuador.  Arizaga noted that there were two major 
problems that prevented the Foreign Minister from signing a note. 
 
 
 
PROBLEMS WITH THE CONSTITUTION 
 
 
 
¶3.  (C) Arizaga said the first problem was that, according to MFA 
lawyers, the reference to "military exercises" required approval by 
the Ecuadorian National Assembly and Constitutional Court, per 
Article 418 of the 2008 constitution, which he said states that 
"all treaties or other international instruments" must be approved 
by the National Assembly.  He added that Article 419 of the 
constitution also required that the diplomatic note be approved by 
the National Assembly because of the reference to "military" 
activities.  He warned that approval by the Assembly could take six 
months. 
 
 
 
¶4.  (C) While we are not legal experts, our understanding of the 
constitutional articles referenced by the MFA does not seem to 
apply in the case of an exchange of diplomatic notes regarding 
military exercises.  Article 418 of the constitution states that 
"The President of the Republic subscribes or ratifies treaties or 
other international instruments.  The President of the Republic 
will inform the National Assembly immediately of all treaties that 
have been subscribed, with precise indication as to their character 
and content.  A treaty can only be ratified, for its later exchange 
or deposit (placement in the custody of a depository), ten days 
after the Assembly has been notified."  To our knowledge, an 
exchange of diplomatic notes would not constitute a treaty, nor 
would it be signed by the Ecuadorian president (the foreign 
minister would sign the diplomatic note).  Article 419 of the 
constitution states that "international treaties will require prior 
approval by the National Assembly in cases that:"..."Establish 
political or military alliances."  The contents of the diplomatic 
notes in this case do not explicitly or implicitly refer to an 
"alliance," either political or military.  (Note:  Quotations of 
constitutional provisions are informal embassy translations.  End 
note.) 
 
 
 
POLITICAL COMPLICATION WITH IMMUNITIES 
 
 
 
¶5.  (C) Regarding the second problem, Arizaga said that President 
 
Correa had requested in early 2009 that immunities be eliminated 
for all international personnel of all countries, except in the 
case of traditional diplomatic relations.  When questioned as to 
the legal basis for such an impediment on immunities, MFA legal 
advisor referred to Article 9 of the constitution, that "Foreign 
persons in Ecuadorian territory will have the same rights and 
obligations as Ecuadorians, in accordance with the Constitution." 
 
 
 
¶6.  (C) Arizaga stated that Security Minister Carvajal and other 
members of the security cabinet agreed that they could not accept 
giving immunities to U.S. or other foreign troops.  He appeared 
surprised when we informed him that a U.S. military exercise could 
involve as few as 12 servicemembers, and likely no more than 40. 
He added that the GOE did not grant immunities to recent Cuban and 
Venezuelan contingents that were much larger than the estimated 40 
servicemembers we would have in country under the auspices of a 
hypothetical Medical Readiness Exercise (MEDRETE), which would be 
the largest number of any U.S. military activity covered by the 
diplomatic note. 
 
 
 
¶7.  (C) Arizaga admitted that this was also a political problem, 
and that eliminating the word "immunities" from the text of the 
note would help resolve the issue.  The DCM responded that the term 
"immunities" is not used in the text of the diplomatic note, simply 
that U.S. personnel will be afforded "status equivalent to that 
provided to the administrative and technical staff of the U.S. 
Embassy in accordance with the Vienna Convention..." 
 
 
 
¶8.  (C) According to Arizaga, the MFA's legal department proposed 
three possible approaches to resolving the problem of immunities: 
1) providing status to U.S. personnel equivalent to Ecuador's 
12-III visa, which grants administrative and technical status, 
albeit only while on duty; 2) referring the legal process for any 
illegal acts committed by U.S. personnel covered under the note to 
the Ecuadorian National Court of Justice (similar to how National 
Assembly members would be tried); and 3) granting no immunities. 
 
 
 
MOD WANTS TO KEEP THE COOPERATION 
 
 
 
¶9.  (C) The DCM said that Ecuador had already lost over $8 million 
in military assistance, due to the lack of a signed agreement on 
military cooperation and the need to transfer funds to Haiti. 
Roughly an equivalent amount remained for calendar year 2010, but 
was also subject to being redirected elsewhere.  Arizaga said that 
Defense Minister Javier Ponce was pushing the MFA to sign the note 
as soon as possible and understood the value of keeping cooperation 
with the U.S.  He asked whether it was possible for the Ministry of 
Defense to sign a document with the Embassy.  The DCM noted that we 
were looking for a signed agreement "between governments," and this 
did not dictate who would sign, but that the agreement must meet 
substantive concerns.  (Note:  In the Embassy's view, however, the 
issue of immunities and visas are under the MFA's jurisdiction, not 
the Ministry of Defense.  End Note.) 
 
 
 
NEXT STEPS 
 
 
 
¶10.  (C) Arizaga said that Ponce would raise these problems with 
GEN Fraser during his visit to USSOUTHCOM on February 10-11.  He 
added that the ministers of foreign affairs, defense and security 
 
and the secretary of intelligence would meet on February 18 to 
determine a course of action.  When asked about the possibility of 
signing a diplomatic note to salvage remaining cooperation for 
2010, and negotiating text for a note to cover cooperation in 2011, 
Arizaga responded that it would be very difficult, since the 
document would be subject to review by the National Assembly. 
 
 
 
COMMENT 
 
 
 
¶11.  (C) Although the GOE appears to want to resolve the issue, 
based on statements by numerous officials, the political 
sensitivity and ultimate responsibility of overriding a legal 
determination by the MFA's legal department to sign an "agreement" 
with the U.S may be a risk too great for the Foreign Minister in 
the foreseeable future.  SOUTHCOM temporarily waived the need for a 
signed note, through March 31, on the expectation that an agreement 
would be reached.  We will soon need to review this issue again, 
and possibly look at what cooperation we would want to keep, and 
what to cancel, in the event that no agreement is signed. 
HODGES