139. Memorandum from Deputy Assistant Secretary of State for
Inter-American Affairs (Hurwitch) to Secretary of State Rogers1
2
Washington, December 12, 1972.
Subject:
-
Hijacking Agreement with Cuba
Attached for your information is a report from the Swiss on their
December 9 meeting with the Cuban negotiators. Also attached is a
memorandum of last night’s meeting with the Canadian Embassy
officials.
The Cuban preliminary reaction to the possibility of returning guilty
parties is interesting in that they inquired about procedures rather
than reject the option. This reaction provides us with an opportunity to
probe Cuban interest in activating the 1904 extradition treaty. This
opportunity could be explored when Ambassador Masnata next meets with
the Cuban negotiators by instructing him now to do so, or it could wait
until after his report of the full Cuban reaction to our proposal at the
next meeting. In light of the Canadian and Mexican forward movement, I
think we should place Ambassador Masnata in the position to probe the
Cuban position on the extradition treaty at the next meeting as well as
to clarify some of the other (minor) points the Cuban negotiators
made.
Recommendation
That Ambassador Masnata be instructed now to probe at the next meeting
the Cuban position on reactivating the extradition treaty as well as
clear up some of the minor questions the Cuban negotiators have
raised.
[Rogers approved the
recommendation, but changed the language to read: “That Ambassador
Masnata be instructed to suggest that one procedure that might be
considered would be extradition under the 1904 treaty.”]
Approve ____________
Disapprove _________
[Page 2]
Attachment
December 11,
1972
Message from the Swiss Embassy in Havana
The second meeting between the Embassy of Switzerland in Havana and
the Cuban authorities, in connection with the negotiations for an
agreement on hijacking place on Saturday, December 9, 1972, at 11:45
a.m.
The Ambassador of Switzerland handed over to Vice Minister Anillo the original text of the
American draft, as he received it from Secretary of State William P. Rogers, as well as the
SD’s non-official Spanish translation for legal reasons together
with a Verbal Note of the Embassy.
On this occasion, Ambassador Masnata underlined the fact that the
American draft is based on the Cuban proposal of November 25, 1972,
and that the modifications proposed by the U.S. authorities have
been made exclusively for legal reasons.
Ambassador Masnata explained the reasons why the U.S. Government
wishes to conclude an “Executive Agreement” (Memorandum of
Understanding) instead of an agreement which would be subject to the
Senate approval.
The Ambassador mentioned that the distinction made between hijacking
of an aircraft and hijacking of a vessel was based upon the same
distinction made by the U.S. internal legislation. Ambassador
Masnata also drew the attention of the Cuban authorities to the
alternative solution of [Page 3]
returning the hijackers to the first country or trying them in the
second.
Vice Minister Annuli and Mrs. Olga Miranda showed particular interest
in the following questions:
QUOTE
- 1.
- The difference in the penalties depending on whether air or
sea piracy is involved, and the fact that no minimum penalty has
been provided for sea piracy.
- 2.
- They asked for details about procedure in the case of return
of the guilty parties.
- 3.
- They were bothered for a moment by the wording “in the case of
air piracy” and “and in other cases” used with reference to
penalties in the first sentence of Article One. I had the
impression that Annuli was a little concerned by the fact that
boats were not explicitly referred to.
- 4.
- In Article Three, they also were bothered by the addition of
common crimes but they seemed able to swallow it after my
explanations.
- 5.
- Finally, they dwelt on what they called in Spanish the valor
(status, weight, force, importance) of the agreement, asking in
particular if the hijacking agreement would have the same valor
as the 1965 Memorandum on refugees. We ended with the
understanding that it was less a matter of a [Page 4] gradation in juridical force
between one agreement and another than it was a question of
form. Our interlocutor wanted to know if the hijacking agreement
would take the same form as the 1965 Memorandum. In order not to
prejudice the decision of the State Department, and in
accordance with my conversations with Mr. Hurwitch, I replied that for
the moment the question was still open and the two parties would
have to reach an understanding on this subject. I asked
Anillo if he had a
suggestion to make and he quickly replied in the negative.
UNQUOTE
The Cuban authorities will propose the date of a third meeting upon
completion of their study of the American counterproposals.
