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R 282215Z MAR 08
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TO RUEHKV/AMEMBASSY KYIV 0000
INFO RUEKJCS/SECDEF WASHINGTON DC//USDP/OGC//
RUEKJCS/SECDEF WASHINGTON DC
RHMFISS/JOINT STAFF WASHINGTON DC//LC/J-5//
RHMFISS/JOINT STAFF WASHINGTON DC
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC//CRIM-NDDS//
RULSJGA/COMDT COAST GUARD WASHINGTON DC//G-LMI//

UNCLAS STATE 032521 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: KNNP KTIA PHSA PARM PREL EWWT UP
SUBJECT: PSI SHIPBOARDING AGREEMENT NEGOTIATIONS WITH 
UKRAINE, FEB. 13, 2008 - DELEGATION REPORT 
 
REF: A. 05 KYIV 04998 
     ¶B. 07 KYIV 00513 
     ¶C. 07 STATE 161772 
 
¶1.  Summary:  U.S. and Ukrainian negotiating teams discussed 
the major areas of disagreement regarding the draft 
Proliferation Security Initiative (PSI) shipboarding 
agreement during a second round of talks in Washington, DC on 
February 13, 2008.  Major issues identified for near-term 
follow-up include the following: 
(a) whether Ukraine may authorize access to cargo sealed 
under the customs authority of a third party in view of 
perceived Ukrainian international and domestic obligations 
and customs maintenance regimes; 
(b) whether the U.S. and Ukraine can reach mutually 
acceptable guidelines for the use of force during boarding 
operations consistent with the domestic laws of both 
countries; 
(c) whether Ukraine will be amenable to including the 
exclusive economic zone (EEZ) of both countries in the 
geographic scope of the PSI shipboarding agreement; and 
(d) whether a side letter describing claims procedures would 
be useful in documenting the understanding of both Parties. 
In addition, the U.S. committed to develop a table-top 
exercise to assist both countries in understanding how the 
agreement would work in practice, and to provide sample 
request forms as potential attachments to the agreement. 
Both delegations judged the meeting very useful in enhancing 
understanding and bringing the two countries' positions 
closer together.  End Summary. 
 
¶2.  The U.S. had provided Ukraine with a proposed text of a 
bilateral PSI shipboarding agreement in early 2005.  The 
first round of negotiations was held in Kyiv in December 2005 
(ref A).  In early 2007, the U.S. received a Ukrainian 
counter-draft (ref B).  The U.S. review of the counter-draft 
raised a number of questions and concerns.  Fifteen key U.S. 
concerns were conveyed to the Ukrainian side in late 2007 
(ref C).  Ukraine provided informal interim responses in late 
January 2008.  The purpose of the February 13, 2008 meeting 
was to gain a better understanding of the perceived legal and 
language barriers accounting for the majority of the numerous 
expressed concerns. 
 
----------------------------- 
STANDARD FOR "SUSPECT VESSEL" 
----------------------------- 
 
¶3.  The Ukrainian and U.S. negotiating teams discussed the 
definition of "suspect vessel" as proposed by the U.S. in the 
PSI shipboarding agreement text and subsequently modified by 
Ukraine.  The standard to determine whether a 
vessel is "suspect" in the UN Convention on the Law of the 
Sea is whether there are "reasonable grounds to suspect" 
illegal activities are taking place on the vessel.  Ukraine 
proposed a standard of "objective facts to 
confirm" a vessel is engaged in suspect activities.  The U.S. 
explained the standards for what is "reasonable," emphasized 
the requesting Party's need to maintain credibility in the 
international community, highlighted 
the flag state's right to permit or deny boarding, and 
provided examples of indicators considered by the U.S. in 
determining whether it has reasonable grounds to suspect a 
vessel to be engaged in suspect activities.  These 
examples and explanations appeared to reduce Ukrainian 
concerns that Ukrainian flag vessels might be subjected to 
search upon a chance encounter. 
 
¶4.  The U.S. also noted that this definition was not the 
appropriate place for the exemption of warships and vessels 
on government service, to which the Ukrainians seemed 
amenable as long as the exemption was clearly stated in the 
agreement. 
 
------------------------------------ 
DEFINITION OF "INTERNATIONAL WATERS" 
------------------------------------ 
 
¶5.  Ukraine's proposal limited the scope of the PSI 
shipboarding agreement by defining "international waters" to 
exclude the exclusive economic zone (EEZ). During the 
meeting, Ukraine proposed excluding only the U.S. and 
Ukrainian EEZs from the PSI shipboarding agreement.  The U.S. 
explained that such an exclusion is inconsistent with the law 
of the sea and cannot be part of such an agreement because it 
would be perceived as legitimizing the excessive territorial 
claims of other countries.  Following lengthy discussions, 
the Ukrainians decided they needed further internal 
consultations on the definition of "international waters" for 
purposes of this agreement. 
 
---------------------------- 
SCOPE OF AGREEMENT AND CARGO 
---------------------------- 
 
¶6.  Due to restrictions contained in Ukrainian domestic 
customs maintenance laws, Ukraine considers itself unable to 
authorize the opening of cargo boxes or containers on 
Ukrainian flagged vessels if the cargo was sealed by 
authorities in another country.  Liability concerns were also 
raised.  The U.S. noted that U.S. law allows opening and 
search of any cargo on a U.S. ship or in U.S. waters.  The 
U.S. explained that inspection of sealed containers on 
container ships is not contemplated during an at-sea boarding 
under the PSI shipboarding agreement due to logistical 
challenges.  Ukraine promised to consult further with its 
customs attorneys and to review existing Ukrainian laws.  For 
its part, the U.S. proposed to build customs scenarios into a 
practical training exercise for Ukraine, along with 
references to appropriate authorities to demonstrate how the 
PSI shipboarding agreement would function and how claims 
would be processed. 
 
--------------------------------------------- --------- 
COOPERATION "SUBJECT TO THE AVAILABILITY OF RESOURCES" 
--------------------------------------------- --------- 
 
¶7.  Ukraine expressed concern over the U.S.-proposed language 
in the PSI shipboarding agreement that limits the parties' 
commitment to cooperation "subject to the availability of 
resources."  For instance, Ukraine was 
concerned it would be exploited as a loophole to circumvent 
the process set forth in the PSI shipboarding agreement if 
technical communication modes failed or were otherwise 
unavailable.  The U.S. assured Ukraine that the 
language was included not as a means to circumvent the 
process but, rather, based on the fact that the U.S. cannot 
commit funds absent the authority to spend pursuant to an 
appropriation from Congress.  Ukraine stated that, 
for it, this concept was captured in the phrase "in 
accordance with national legislation."  The U.S. suggested 
replacing the ambiguous language with the term "within the 
means available" as contained in the 2005 Protocol to the 
Convention on the Suppression of Unlawful Acts against the 
Safety of Maritime Navigation (SUA), and also offered to 
clarify in Article 4 that the approval process may not be 
circumvented. 
 
--------------------------- 
VESSELS WITHOUT NATIONALITY 
--------------------------- 
 
¶8.  The U.S. proposed language in the PSI shipboarding 
agreement noting the authority of warships to board and 
inspect vessels without nationality consistent with Article 
110 of the Law of the Sea Convention.  Ukraine was concerned 
about potential claims against it by third parties boarded by 
the U.S. on grounds that the vessel was without nationality. 
Ukraine was also concerned about being subjected to potential 
claims if Ukraine was unable to confirm the nationality of 
its own vessel and the U.S. subsequently boarded the vessel 
as stateless.  The U.S. directed Ukraine to the claims 
provisions contained in Article 12 of the PSI shipboarding 
agreement.  The U.S. also pointed out that the text proposed 
by Ukraine in Article 4, paragraph 2.3 necessitated including 
the authority of warships to board stateless vessels in the 
PSI shipboarding agreement.  Ukraine expressed openness to 
including text stating that the PSI shipboarding agreement 
does not preclude either Party from exercising its authority 
consistent 
with the Law of the Sea Convention.  As an alternative, 
Ukraine suggested including provisions on stateless vessels 
in a separate article.  The U.S. urged Ukraine to agree to 
keep all text related to the scope of the agreement in 
Article 3, and to agree to the U.S.-proposed procedures for 
boarding stateless vessels in Article 4, paragraph 4. 
 
------------------------- 
TWO-STEP APPROVAL PROCESS 
------------------------- 
 
¶9.  The PSI shipboarding agreement as edited by Ukraine would 
require a two-step process: (1) for a Party to confirm 
registry of a vessel; and (2) after registration is 
confirmed, for a Party to agree to a request to board the 
vessel. Ukraine would be comfortable with a process allowing 
for a single request both to verify registry and board a 
vessel, as long as the U.S. understood that Ukraine may 
respond to such requests in two phases.  The U.S. agreed to 
 
this procedure.  Ukraine also expressed concern that 
information in request or reply forms might be disclosed to 
third parties.  The U.S. reminded Ukraine that the 
information would be exchanged between the designated 
Competent Authority of each Party and offered to provide 
Ukraine with sample request forms to alleviate such concerns. 
 The U.S. provided Ukraine with sample forms on February 14, 
¶2008.  NOTE:  Department is preparing bilingual forms that 
can be filled in on a computer rather than by hand.  END 
NOTE. 
 
------------------------------------------- 
COMPENSATION FOR BOARDING STATELESS VESSELS 
------------------------------------------- 
 
¶10.  The U.S. was unable to accept Ukraine's proposed text 
regarding claims made by vessels boarded as stateless 
vessels, as discussed above in paragraph 8 of this cable. 
Ukraine agreed to removal of its proposed Article 4, 
paragraph 2.3 as long as Article 4, paragraph 1 contained 
language requiring the Parties to act towards stateless 
vessels consistent with the law of the sea, thereby 
protecting the interests of vessels whose Ukrainian registry 
was not confirmed until after the fact.  Ukraine's concern 
was not to be held responsible for actions taken toward 
vessels not under the Ukrainian flag. 
 
----------------- 
REFUSAL OF MASTER 
----------------- 
 
¶11.  The text of the PSI shipboarding agreement as proposed 
by Ukraine would permit the master of a vessel to deny a 
Party from boarding, even when the flag State consented to 
the boarding.  The U.S. stated it would not agree to language 
that allows the master of a vessel to deny a boarding. 
Ukraine was concerned about potential liability of a master, 
which the U.S. suggested should not be a concern as long as 
the master was not knowledgeable of the illegal cargo. 
Ukraine explained that under its domestic law, a Captain of a 
Ukrainian flagged vessel has discretion to deny a boarding 
outside territorial waters, except for matters related to law 
enforcement or customs.  Ukraine therefore believed it could 
agree to remove the provision, since the PSI shipboarding 
agreement related to law enforcement and would become law 
upon entry into force. 
 
----------------------- 
JURISDICTION AND WAIVER 
----------------------- 
 
¶12.  The U.S. and Ukraine agreed conceptually to the 
possibility of a waiver of jurisdiction as stated in the 
U.S.-proposed Article 5 on Jurisdiction over Detained 
Vessels.  The teams discussed the distinction between 
"primary right of jurisdiction" and "exclusive jurisdiction," 
which was not clear to Ukraine.  The U.S. agreed that 
Ukraine's proposed Article 11, paragraph 2 on release of a 
suspect vessel was the flag state's right. 
 
------------ 
USE OF FORCE 
------------ 
 
¶13.  Ukraine took significant issue with the U.S.-proposed 
Article 9 of the PSI shipboarding agreement setting forth 
standards for the use of force during boarding and search of 
suspect vessels.  Ukraine proposed detailed provisions 
consistent with its domestic law, with the expectation that 
U.S. law enforcement officers would comply with Ukrainian 
domestic laws and regulations on Ukrainian flag vessels.  The 
U.S. opposed the expectation that law enforcement officers of 
either Party be required to conduct their boarding operations 
in accordance with the laws of the other Party.  The U.S. 
provided Ukraine with copies of Chapter 4 of the U.S. Coast 
Guard Maritime Law Enforcement Manual (Coast Guard Use of 
Force Policy). Lawyers for the U.S. and Ukrainian negotiating 
teams committed to compare the laws and regulations for each 
country regarding the use of force and consider the viability 
of drafting a common use of force policy. 
 
---------------------------------------- 
EXCHANGE OF INFORMATION ON NATIONAL LAWS 
---------------------------------------- 
 
¶14.  Ukraine found it inconsistent to require knowledge of 
flag State laws without also imposing an obligation that the 
Parties abide by such laws.  The U.S. explained the inherent 
impossibility of requiring law enforcement officers of one 
Party to comply with laws of the other Party.  The U.S. 
pointed out that the safeguards contained in Article 8 and 
international law protect against abuses by law enforcement 
agents and that an exchange of information on national laws 
is necessary to align expectations of the Parties and their 
law enforcement agents in the execution of this agreement. 
As discussed in paragraph 13 above, the U.S. suggested that 
both Parties take a closer look at their domestic laws, 
particularly with regard to the use of force.  If the laws 
for both countries are sufficiently consistent with one 
another, the Parties could consider including text acceptable 
to both sides. 
 
------ 
CLAIMS 
------ 
 
¶15.  Ukraine proposed imposing the law of the flag State to 
resolve claims from third parties.  The U.S. was unable to 
accept this proposal and explained how the U.S. processes and 
pays claims by foreign nationals.  The U.S. also provided 
Ukraine with a written explanation of U.S. claims laws and 
procedures to review.  Ukraine will review the letter to 
determine if such a letter could resolve Ukraine's concerns. 
NOTE: This explanation has been translated into Ukrainian and 
provided to the Ukrainian Embassy.  END NOTE. 
 
------------------------ 
DISPUTES AND ARBITRATION 
------------------------ 
 
¶16.  Ukraine proposed that any disputes surrounding the PSI 
shipboarding agreement be resolved through arbitration, and 
urged the U.S. to allow for arbitration in its domestic law. 
The U.S. explained it is unable to commit to arbitration for 
resolution of disputes in agreements of this type, and cannot 
use this agreement to change U.S. law because it is not 
subject to legislative approval.  Ukraine warned the 
agreement would be very difficult to ratify if it stated that 
claims and disputes must be handled according to the U.S. 
court system.  The U.S. agreed that another state also could 
raise disputes with it via diplomatic channels. 
 
--------------------------------- 
NOT PREJUDICING INTERNATIONAL LAW 
--------------------------------- 
 
¶17.  Ukraine bracketed U.S.-proposed language (U.S.-proposed 
Article 14, subparagraph b) stating that the agreement would 
not prejudice the position of either Party with regard to 
international law or territorial or maritime boundaries. 
Since the U.S. had included the provision in view of existing 
maritime claims by Ukraine in the Black Sea, the U.S. agreed 
to delete the provision given Ukraine's objection to it. 
 
-------------------------- 
COOPERATION AND ASSISTANCE 
-------------------------- 
 
¶18.  Ukraine had bracketed the U.S.-proposed text on 
cooperation in providing technical assistance.  The U.S. 
explained the potential benefit of the provision.  Ukraine 
dropped its objection in principle, but was not able to 
decide whether the provision should refer to the "Competent 
Authorities" or the "Parties."  The Ukrainian delegation 
needed to consult with other experts and study the provision 
further. 
 
------- 
COMMENT 
------- 
 
¶19.  The U.S. Government appreciates the careful review by 
Ukrainian agencies and departments of the draft PSI 
shipboarding agreement. U.S. agencies and departments have 
given similarly careful review to Ukraine's proposed draft 
dated January 26, 2007.  The meeting on February 13, 2008 was 
productive in resolving a number of misunderstandings and 
communicating to Ukraine that many of its revisions are 
acceptable to the United States. 
 
¶20.  There remain certain revisions and additions proposed by 
Ukraine, however, that attempt to change the intended scope 
of this agreement, or that are inconsistent with what the 
U.S. Government may commit to in such agreements.  The U.S. 
will strive to work with Ukraine to review the relevant 
domestic laws of both Parties in order to reach mutually 
acceptable language on use of force standards during 
boardings as well as the processing of claims.  Ukraine has 
agreed to investigate further any restrictions based on its 
customs maintenance law and, if necessary, to seek changes to 
its domestic laws. 
 
¶21.  (U) Delegations: 
 
-- U.S. delegation: 
¶J. Ashley Roach, State/L-OES 
CDR Vida Antolin-Jenkins, CJCS-LC 
LCDR Rachael Bralliar, U.S. Coast Guard 
Paul Dean, State/L-NPV 
Robert Gonzales, State/EUR-UMB 
Jane Purcell, State/ISN-CPI 
Wayne Raabe, Department of Justice/CRIM-NDDS 
Michael Uyehara, U.S. Embassy, Kyiv 
LT Tamara Wallen, U.S. Coast Guard 
Robert (Chip) Wedan, DoD/GC 
Ms. Marta Zielyk, interpreter 
Ms. Matilda Kuklish, interpreter 
 
-- GOU delegation: 
Volodymyr Bielashov, MFA 
Oleksandr Bondarenko, MFA 
Ruslan Nimchynskyi, Ukrainian Embassy 
Olexander Osadchyi, Ukrainian Embassy 
Viktor Seredniy, State Border Guards 
Volodymyr Shkilevych, Ukrainian Embassy 
Liudmyla Sidlovska, Ministry of Justice 
RICE