This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 SAN JOSE 002717 
 
SIPDIS 
 
E.O. 12958: DECL: 11/23/2015 
TAGS: PREL MASS ETRD EAID CS KICC
SUBJECT: COSTS OF NOT HAVING AN ARTICLE 98 AGREEMENT ARE 
MOUNTING 
 
REF: A. SAN JOSE 2106 
 
     ¶B. SAN JOSE 234 
     ¶C. 04 SAN JOSE 2233 
     ¶D. 04 SAN JOSE 443 
     ¶E. 03 SAN JOSE 1773 
 
Classified By: Ambassador Langdale for reasons 1.4 (b) and (d) 
 
Summary 
-------- 
 
¶1. (C) The GOCR, though not philosophically opposed to 
providing the United States with the protections contained in 
an Article 98 agreement, faces serious political and 
constitutional impediments, which have for the last two and a 
half years prevented an agreement from being concluded. 
Meanwhile, because of the American Servicemembers' Protection 
Act (ASPA) and the Nethercutt Amendment to U.S. 
appropriations bills, Costa Rica is paying a growing price 
for not signing an Article 98 agreement. Beginning in FY 04 
U.S. military assistance has been cut off, and beginning in 
FY 05 Costa Rica lost its eligibility for Economic Support 
Funds (ESF).  This has adversely affected U.S.-Costa Rican 
cooperation in the areas of counternarcotics, 
counterterrorism, and, to a lesser extent, free trade.  End 
summary. 
 
Political/Constitutional Dilemma 
-------------------------------- 
 
¶2. (C) President Pacheco is not opposed to an Article 98 
agreement per se, but he and his foreign minister, Roberto 
Tovar, recognize that such an agreement would not be ratified 
by the Legislative Assembly.  This is because of widespread 
support for the International Criminal Court (ICC), one of 
whose magistrates is Costa Rican, and the belief that an 
Article 98 agreement somehow undermines the ICC and weakens 
Costa Rica's commitment to multilateralism and international 
law.  Consequently, the GOCR's position for the last two and 
a half years has been that it would consider only an Article 
98 agreement that would not have to be submitted to the 
Legislative Assembly for approval. 
 
¶3. (C) The Costa Rican constitution requires that 
international agreements negotiated by the executive branch 
be approved by the Assembly before they can be deemed valid. 
There is an exception, however, for lesser-rank "protocols" 
derived from an existing international agreement and 
expressly authorized by that agreement.  Such a protocol can 
be promulgated by the executive without legislative approval. 
 The trick is to identify an existing international agreement 
that can serve as a legal foundation for the scope of 
protections contained in an Article 98 agreement.  We must 
not only persuade President Pacheco, but ultimately the 
Constitutional Chamber of the Supreme Court.  (Comment:  The 
Court has a history of striking down the exercise of 
executive power.  In September 2004, for example, the Court 
ruled that the executive had overstepped its authority and 
violated Costa Rica's tradition of neutrality by giving 
political support to U.S. and allied military action in Iraq. 
See 04 San Jose 2401.) 
 
New Ferment Over Article 98 
--------------------------- 
 
¶4. (U) The Costa Rican press reported November 20 and 21 that 
the U.S. Congress had passed an FY 06 appropriations bill 
that prohibits the provision of Economic Support Funds (ESF) 
to countries that are parties to the ICC and have not entered 
into an Article 98 agreement with the United States.  Foreign 
Minister Tovar was interviewed in the leading newspaper and 
complained that the U.S. legislation is unfair and that Costa 
Rica should be among the exempted countries, as a good and 
reliable friend of the United States.  He also left a small 
opening for negotiations by adding, "We have already said (to 
the USG) that we can analyze the possibility of supporting 
some other agreement (other than the standard model Article 
98 agreement) inasmuch as it does not contradict Costa Rican 
principles." 
 
¶5. (C) Ambassador followed up by phoning Tovar the morning of 
November 21 and asking him, in light of his comment to the 
press and his earlier suggestion to Ambassador to do 
"something" about Article 98, whether the time might be right 
for renewed discussions.  Tovar replied that at the moment he 
is completely consumed with preparing a brief for Costa 
Rica,s border dispute case against Nicaragua in the 
International Court of Justice (ICJ).  After that, he will 
think about how to craft an Article 98 solution and committed 
to get back with Ambassador on this issue after the holidays. 
U.S. Military Assistance Comes To An End 
---------------------------------------- 
 
¶6. (SBU) Although Costa Rica abolished its military in 1949, 
it has police, a Coast Guard, and an Air Section that carry 
out paramilitary functions.  Engagement with the U.S. Armed 
Forces increased dramatically with the signing of the 
Bilateral Maritime Agreement for Counternarcotics Cooperation 
of 1998.  The relationship is managed by the military group 
at the Embassy, headed by a Coast Guard Commander.  His main 
counterparts in the GOCR are the Minister of Public Security 
and the Director of the Costa Rican Coast Guard, who reports 
to that minister.  Cooperation is in the areas of the fight 
against drug trafficking and the fight against terrorism. 
 
¶7. (SBU) Between 2000 and 2002, the United States supplied 
most of the boats now used by the Costa Rican Coast Guard, 
including three 82-foot patrol boats (furnished as Excess 
Defense Articles-EDA) and six 24-foot rigid-hull inflatable 
boats (purchased with State Department International 
Narcotics and Law Enforcement (INL) funds).  In addition, 
using funds from DOD's Foreign Military Sales (FMS) program, 
Costa Rica has been able to purchase many small but essential 
items used in law enforcement, such as vehicles, radios, 
uniforms, flashlights, night-vision goggles, etc. 
 
¶8. (SBU) The bread and butter of U.S. cooperation, however, 
has been training, mostly funded with International Military 
Education and Training (IMET) funds, on the order of about 
USD 400,000 a year.  State Department INL funds added as much 
as USD 200,000 for training.  The Costa Rican Coast Guard was 
the main beneficiary, receiving a variety of courses for 
professional development.  IMET-funded training was also 
provided to intelligence officers, the Special Intervention 
Unit (SWAT team), and mechanics and pilots in the Air Section. 
 
¶9. (SBU) Costa Rican eligibility for IMET, EDA, and FMS ended 
with the entry into force of the American Servicemembers' 
Protection Act (ASPA) because Costa Rica is a party to the 
ICC and has not signed an Article 98 agreement.  As of FY 04, 
Costa Rica has not received any U.S. military assistance. 
Coincidentally, INL funds have diminished significantly for 
Costa Rica, and a U.S. maritime engineer resident in Costa 
Rica and financed by INL has moved to Panama. 
 
Ineligibility for Economic Support Funds 
---------------------------------------- 
 
¶10. (SBU) Costa Rica's failure to sign an Article 98 
agreement has also resulted in ineligibility for ESF starting 
in FY 05.  As a result, Costa Rica was the only signatory 
country to the U.S.-Central American-Dominican Republic Free 
Trade Agreement (CAFTA-DR) that could not receive a portion 
of the FY 05 USD 20 million in ESF in trade capacity building 
funds for labor and environmental programs.  The funds are 
being used to modernize labor justice systems, strengthen 
labor ministry inspection systems, and improve enforcement of 
laws against sex discrimination.  Significant amounts of ESF 
for trade capacity building in CAFTA-DR countries could be 
appropriated in the future, but Costa Rica would remain 
ineligible. 
 
Comment 
------- 
 
¶11. (C) The GOCR is keenly aware of the costs of not signing 
an Article 98 agreement.  The worst affected are the Ministry 
of Public Security and supporters of an expanded trade 
relationship with the United States.  Although the value of 
U.S. military assistance in monetary terms may not seem to be 
much, it is vital for the maintenance of Costa Rica's 
counternarcotics and counterterrorism capabilities.  The lack 
of funds in the last two fiscal years has resulted in 
noticeable deterioration of the seaworthiness of the Costa 
Rican Coast Guard fleet and degradation of the operational 
readiness of other law enforcement units such as the SWAT 
team.  More worrisome, the absence of training and other U.S. 
military assistance may eventually cause Costa Ricans to call 
into question the value to them of the Bilateral Maritime 
Agreement. 
 
¶12. (C) A key preoccupation of Foreign Minister Tovar and 
Costa Rican Ambassador to the United States Tomas Duenas is 
that Costa Rica is being cut off from ESF needed to implement 
CAFTA-DR.  Tovar moreover feels that Costa Rica is being 
unfairly discriminated against.  Tovar and Duenas both 
believe that if it becomes generally known that Costa Rica is 
not eligible for assistance being received by all other 
CAFTA-DR countries, it will hurt prospects for ratification 
of CAFTA-DR in Costa Rica. 
 
¶13. (C) The unavailability of U.S. military assistance and 
ESF unavoidably contributes to a decline in U.S. influence in 
Costa Rica and makes it more difficult to achieve our 
objectives in the areas of counternarcotics, 
counterterrorism, and, to a lesser extent, free trade.  Our 
task is to find a way out of the dilemma faced by the GOCR 
because it is in reality also a dilemma for the United States 
as we strive to stem the flow of illegal drugs, stop 
terrorists, and foster an ever-growing trade relationship 
with Costa Rica. 
LANGDALE