CHEMICAL WEAPONS CONVENTION (CWC) - STATUS OF

UNCLAS SECTION 01 OF 05 THE HAGUE 001512

SIPDIS

SENSITIVE

STATE FOR AC/CB, NP/CBM, VC/CCB, L/ACV, IO/S
SECDEF FOR OSD/ISP
JOINT STAFF FOR DD PMA-A FOR WTC
COMMERCE FOR BIS (GOLDMAN)
NSC FOR JOECK
WINPAC FOR LIEPMAN

E.O. 12958: N/A
TAGS: PARM PREL LY CWC
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC) - STATUS OF
DISCUSSIONS ON LIBYAN EXTENSION REQUEST AND RABTA
CONVERSION

REF: SECSTATE 132224 (NOTAL)

This is CWC-73-04.

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SUMMARY
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1. (SBU) As noted in the scene setter for the 37th
Executive Council session (septel),one important set of
decisions under consideration at the EC involve the requests
from Libya and Albania for extension of their destruction
deadlines. At this point, the prospects for the adoption of
both sets of extension requests is questionable. The
Albanian extension request is addressed in the scene setter
cable. Delegation has indications there may be a problems
from some countries, notably France and Germany, with
providing "in principle" extensions for Libya and Albania.
In the recent past, they have expressed
displeasure/disapproval over the use of this mechanism and
seem to regret that its use was adopted with regard to U.S.
and Russian extensions. Delegation expects those concerns to
be expressed in the run-up to the EC, and probably raised
during the EC, though it remains unclear whether the strength
of France and Germany's disagreement is sufficient for them
to refuse to join consensus.


2. (SBU) Delegation also notes that the subject of the
Albanian and Libyan extension requests has become the
catalyst for reviving another controversial issue thought to
have been put behind us; site visits. Germany and France
have intonated, with the apparent support of other WEOG
members, for including site visits as an element of the
Libyan and Albanian extension request decision documents. In
the course of various conversations, Germany, France, and
Netherlands have indicated they believe it is also necessary
to revive site visits in Russia. WEOG delegations generally
appear to be dissatisfied and restless over what they see as
a pervasive and continuing failure on the part of Russia to
meet its Convention obligations.


3. (SBU) With regard to the Libyan conversion request for
Rabta, the U.S./U.K./Italy/Libya proposal has been previewed
with the Western Group. The discussion indicates that the
U.S. and others will need to do a substantial amount of
spade-work with other delegations in the run-up to the EC and
at the EC itself in order to assuage various concerns. While
the conversion request will probably not be adopted in June,
it will be important to do the work necessary to ensure its
adoption in October. End Summary.

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LIBYAN EXTENSION REQUEST
--------------


4. (SBU) There is no indication that any delegation holds
principled opposition to the Libyan request for new
destruction deadlines. In fact, there is a strong general
feeling that it is important to show that the OPCW is willing
to find a practical solution to the problems facing new
States Parties. The only problem that has arisen is the
concern some delegations (particularly Germany and France)
have with "in principle" deadline extensions. Similar
concerns have been noted regarding the Albanian extension
request, and were expressed last year with regard to U.S. and
Russian deadline extensions.


5. (SBU) We fully anticipate that France, Germany and
others may continue to harp on this issue up to and at the
EC. During this period, it will be important for the U.S. to
work with other delegations and emphasize that "in principle"
extensions are nothing new to the organization. What was
acceptable for the U.S. and Russia should certainly be
acceptable for Libya. Ultimately, we have our doubts that
France, Germany or others would be willing to break consensus
on the Libyan request. In the absence of a good alternative,
which has not been presented to us by France or Germany, they
will be hard-pressed to bear the onus of having denied the
Libyan extension request.

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LIBYA - RABTA CONVERSION - FRENCH VIEWS
--------------


6. (SBU) With regard to creating a mechanism by which to
permit the conversion of Libya's chemical weapons production
facility at Rabta for purposes not inconsistent with the
Convention, it is apparent that France and Germany have
difficulties with the current U.S./UK/Italian/Libyan
approach. The French delegation has stated that while it has
no principled objection either to the concept of converting
Rabta, or the use of a technical change as a means for
enabling such a conversion, it does not favor the
case-by-case approach laid out in our proposal. France
specifically has expressed concern this approach will lead to
the arbitrary, unequal application of standards for future
conversion, along with the attendant legal difficulties.


7. (SBU) The French delegation, allegedly under instructions
from Paris, has presented an alternative proposal for a
technical change (text faxed back to AC/CB, AC/VC) that has
the practical effect of re-starting the conversion clock for
latecomers by extending the conversion period to twelve years
from EIF of the Convention. This text would have the effect,
France asserts, of keeping pressure on newcomers to complete
their conversions quickly, while at the same time preserving
the equal treatment of all SPs under the convention.

Begin Proposed French Text:

"For those countries having ratified or adhered to the
Convention after the 29th April 2003 (sixth anniversary of
EIF),conversion of a chemical weapons production facility
shall be completed not later than twelve years after entry
into force of this Convention".

End Proposed French Text.

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FRG VIEWS
--------------


8. (SBU) Germany has stated that since the conversion
request has not yet been submitted it does not envision any
real action being taken on the request until the October EC,
vice this June. Nevertheless, Germany has emphasized that it
is not expressing a lack of urgency, simply that there is
some time to work it. Moreover Germany has indicated that in
their view the timeframe for conversion as set out in the
Convention is not "technical or administrative" and thus
cannot be changed by a technical change, as is currently
proposed. Rather, such a change is substantive. Germany
will not make this argument publicly, but noted that others,
like Iran and perhaps other NAM countries, may in fact make
such an argument.

9. (SBU) Germany has also expressed concern that Russia may
take advantage of the proposed technical change mechanism to
attempt to do likewise with destruction deadline extension
requests. Russia could claim that a technical change for
extending the conversion deadline is no different than for
changing destruction deadlines and that destruction deadlines
should be treated the same way in the future.


10. (SBU) As a bureaucratic matter, any technical change to
the Convention would require processing through sixteen state
parliaments, as well as Germany's national parliament.
Germany does not rule this out as a possibility, but noted
that if this is the course of action chosen, this is what
they would be up against domestically. The saxitoxin case of
a few years ago presented a model or example for what they
would have to do. Thus, rather than pursuing a technical
change to permit the Rabta conversion, Germany would prefer
to have the change brought about through report language or
an EC decision document. Germany has no objection to the
actual text of the technical change we have proposed, only
the use of a technical change itself.


11. (SBU) To this extent, the French and German positions
are precisely the opposite of one another; the French do not
mind the mechanism of a technical change, but do not like the
text we have proposed while the Germans do not mind the text,
but want a different mechanism. We would emphasize that
apart from contradicting each other, the French and German
positions are, at different times and in different ways, not
only contradictory, but also vacuous.

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U.S. RESPONSES
--------------


12. (SBU) During meetings with France and Germany, as well
as UK and Italy, our respective delegations provided the
following responses to rebut the French and German positions.


13. (SBU) First, re-setting the clock for another six
years, starting April 29, 2003, as France proposes, actually
has the opposite effect from pressuring new SPs to complete
conversion quickly. Using Rabta as an example, it does not
seem reasonable to assume it will require six years to
complete the conversion. But under the French proposal the
Libyans would actually have until April 29, 2009, to complete
their conversion. Thus, far from pressuring them to complete
their conversion, the lack of flexibility by the CSP to set
an earlier date would actually serve to grant more time than
is needed or reasonable.


14. (SBU) Second, the equal treatment argument does not
wash since, under France's proposal, an SP joining the
convention in 2008, for example, would only have one year to
complete a conversion. If we were faced, as is the case with
Libya, with a compelling case for permitting the conversion,
the SP in question would only have one year to complete it.
This did not seem like "equal" treatment, or a reasonable
approach. More important, with its lack of flexibility to
set a date, the practical effect of France's position would
be to either deny the conversion or to require further action
by the EC and CSP to enable the SP to go beyond the year
remaining to it.


15. (SBU) Third, equal treatment was not the law of the
land. There were other provisions in the Convention that
allowed for dissimilar treatment of SPs, depending upon
circumstances.

16. (SBU) Fourth, Germany's argument for a decision
document or report language also seems untenable. While
changing the deadline for conversion does not require an
actual Convention amendment, recording it in the manner
Germany was proposing would completely trivialize the action
and invite exactly the kind of effort by Russia to adopt a
similar strategy with regard to destruction deadlines that
Germany was wants to avoid. We understood Germany's desire
to avoid parliamentary involvement, but a decision document
or report language is not appropriate for a decision or
action of this significance.


17. (SBU) Generally, we emphasized that our proposal is the
best of several admittedly imperfect options; it definitely
had its warts but, overall, was defensible and represented
the quickest way to move forward. Germany allowed that the
parliamentary process could probably be engaged in the
timelines laid out in the Convention anyway -- that is they
could do their domestic piece of the process in the same or
less time than it will take for the request to wend its way
through the OPCW process -- so they would probably not have
to delay anything.


18. (SBU) In analyzing France's behavior, several things
suggest that its proposal is being driven locally, rather
than originating in Paris. First, in basic respects it is
not well thought out, was not well defended when it was
presented, and the text itself is "kind of pathetic", as UK
put it. It does not seem like a "real" proposal that has
been carefully vetted. Moreover, the French delegation
indicated that the only place their counterproposal was going
to be proffered was here in The Hague. There is to be no
notification by the GOF via capitals.


19. (SBU) Delegation believes Germany's parliamentary claim
is serious. But even the Germans admit that engaging their
parliament on this could be readily done and need not delay
the process. Delegation believes that on further reflection
they will agree that, intellectually, they cannot argue that
report language or a decision document would be more
appropriate than the technical change. Especially given
their concerns over Russia using this as a precedent.


20. (SBU) Given the unconstructive approach taken so far by
France and Germany, delegation believes that the best chance
for success is, in the near term, to essentially ignore the
French proposal and to proceed with building support among EC
members, especially African and Arab countries. As noted
above, their arguments to support their position are very
weak and we do not believe they will gain traction with other
Council members. However, as a later concession to France
and to gain its support, delegation sees no serious harm to
our proposal by adding a provision along the lines France has
proposed. We have in mind text along the lines of "In no
case shall an extension exceed six years after entry into
force of the Convention for such a State Party". The
practical effect would be to preserve our current proposal,
while at the same time assuring that newly-acceding States
Parties are not granted a longer period of time for
completing conversions than original members were given.


21. (SBU) After consulting with UK and Italy, delegation
agreed to a UK briefing to WEOG on 15 June on the proposal.
UK had drafted a set of talking points/non-paper which
Delegation made inputs to ahead of time. Several WEOG
members responded to the presentation by echoing France's
"equal treatment" mantra, most notably Canada and Spain.
Based on the number and similarity of these interventions,
delegation speculates that France and/or Germany had been
busy in the day or two prior to the WEOG meeting. Whatever
the origin, however, skepticism of the case-by-case approach
was widespread, as was support for the notion of equal
treatment.

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NEXT STEPS
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22. (SBU) UK delegation has taken the step of requesting
London's support for a high-level demarche to Paris, Berlin,
and Ottawa, requesting their delegations be directed to
assume a more accommodating and constructive approach. UK
indicated 10 Downing Street had been slugged in its cable.
The UK delegation has been given to understand that London
supports such a demarche. Delegation believes it is worth
considering whether Washington may not wish to do likewise.


23. (SBU) Delegation believes that arguing effectively
against the equal treatment position of France and others
will be important to gaining support for our proposal. We
also believe that the two best arguments against the equal
treatment principle are that it contradicts the "maintaining
pressure" principle, as described in paragraph 13 above, and
that "unequal treatment" has already been clearly established
as a precedent in the context of establishing new deadlines
for the destruction of Category 1 CW. Indeed, also before
the Council this session are requests for extensions of
deadlines for Albania and Libya. As with similar deadline
extension requests for the US and Russia, the approach being
proposed is for the Council to gather as much information as
possible and, based on that information, make a decision for
a new deadline date that is realistic and reflects the
information available. It is not a "one size fits all"
approach but a case-by-case approach that preserves for the
States Parties their ability to exercise judiciousness and
the practical effect of which is to establish different dates
for different States Parties. While these dates are
different, they would nonetheless appropriate to the
particular set of circumstances at hand.


24. (SBU) After the appropriate African and Arab states have
been demarched in Capitals concerning the proposal, we
believe it is important to follow up here with a meeting or
series of meetings, presenting the same material and urging
their unrestrained support for this initiative. Delegation
understands this is consistent with the plans contemplated in
Washington and agreed generally among U.S., UK, and Italy.
Upon receipt of the relevant guidance, delegation intends to
host a meeting of African and Arab delegations along the
lines described. We intend to suggest that the Libyan
representative personally appeal to others to request
guidance from their capitals to offer support during the
upcoming Council session.


25. (U) Javits sends.
SOBEL