CHEMICAL WEAPONS CONVENTION (CWC) - OCTOBER 1

UNCLAS SECTION 01 OF 04 THE HAGUE 002518

SIPDIS

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 CWC
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC) - OCTOBER 1
CONSULTATION ON RABTA CONVERSION


This is CWC-115-04.

--------------
SUMMARY
--------------


1. (U) At the October 1 consultations on the Libyan proposal
to make a technical change to permit conversion of the Rabta
facility, the overwhelming number of attendees voiced strong
support. A limited number of "usual suspects" raised
questions, in particular Pakistan, but also Russia, India and
Iran, primarily questioning the legal basis for the proposal.
While it should be possible to overcome these concerns, it
will require significant work in the Hague and in capitals in
the run-up to the Oct. 12-15 Executive Council (EC) session
where a decision must be taken regarding this proposal. End
Summary.

--------------
STATEMENTS FROM THE OPCW LEADERSHIP
--------------


2. (U) On October 1, at the prompting of the EC Chairman and
other States Parties, informal consultations, chaired by the
Brazilian Ambassador, were held to discuss the Libyan
proposal to make a technical change to the CW Convention that
would permit Libya and future States Parties to seek
conversion of former CW production facilities for purposes
not prohibited by the CWC. The Technical Secretariat (TS)
led off the consultations with useful statements by the
Director-General (DG),Legal Advisor, Director of
Verification, and Director of the Policy-Making Organs.


3. (U) DG Pfirter made a forceful statement emphasizing his
"active engagement" in preparing the positive TS evaluation
of the proposal, the conclusions of which were "unequivocal."
He emphasized that the proposal is "clearly a technical
change," in that it does not alter the basic principles or
rights of the CWC and does not impact current conversion
activities (i.e. Russia),and approving the proposal was
needed to remove a disincentive for others to join. The DG
stressed that the EC must make a recommendation at its
upcoming session to either approve or reject the proposal,
and could not defer the decision to the November Conference
of States Parties. (Comment: This last point was made at
the prompting of the U.S. and UK to head off an expected
Pakistani proposal to send the issue to the CSP.)


4. (U) The Legal Advisor (Ambassador Onate),taking a more
nuanced position than the DG and sticking closer to the
actual text of the TS evaluation, noted that the CWC does not
clearly define the difference between a formal amendment and
a technical change, and that it was left to, and the
responsibility of, the EC to determine the "viability" of the
proposal (i.e., does it satisfy the criteria for a technical
change contained in Article XV, para 4). Nevertheless, Onate
reiterated the characteristics of the proposal that would
suggest the technical change process is appropriate. He also
stated that pursuing the proposed fix through the technical
change process was consistent with international law and the
principle of "dynamic interpretation" of treaty provisions.


5. (U) The Director of Verification (Horst Reeps) affirmed
that the proposed technical change would not change the
verification activities related to CWPF conversion, and thus
pose no risk to the object and purpose of the CWC in this
area. The Director of Policy-Making Organs (Sylwin Gizowski)
stated that the initial steps of the technical change process
have been followed in an appropriate manner and that the EC
is obligated to examine the proposal and make its
recommendation at its next session. He noted that this
process had been previously used in 1999 concerning saxitoxin.

--------------
STATEMENTS OF SUPPORT FOR LIBYA
--------------


6. (U) There was a significant turn out from States Parties,
with no fewer than 43 delegations in attendance. The Libyans
made a brief opening statement emphasizing the need to make a
change that addresses the strict time limit on completing
conversion contained in paragraph 72, and that the proposal
was important for both humanitarian reasons and to promote
universality. Nineteen delegations, from a broad geographic
distribution, made statements offering clear support for the
proposed technical change, specifically: Algeria
(co-sponsor),Morocco (co-sponsor),Sudan (co-sponsor and
speaking for Africa Group),Tunisia (co-sponsor),Japan
(co-sponsor),South Korea, Czech Republic, Poland
(co-sponsor, non-EC),Argentina, Brazil, Austria (non-EC),
Italy (co-sponsor),Netherlands, Norway, Spain, Switzerland
(non-EC, WEOG coordinator),Turkey (co-sponsor, non-EC),UK
(co-sponsor),and the U.S. (co-sponsor).


7. (U) (Note: While offering strong support for making a
technical change, Amb. Vogelaar of the Netherlands made an
unhelpful query about the desirability of having a firm time
limit in the text for States Parties to submit conversion
requests -- current text leaves it up to the EC to decide.
After the meeting del rep explained why such a time limit
would not be needed in practice, but more importantly raised
the concern about possibly opening up the proposal for
redrafting and giving the impression of lack of unity within
the WEOG. Additionally, the Dutch, current President of the
EU, did not make an expected statement about EU support for
the technical change, though Vogelaar offered that he is in
the process of clearing a formal statement for the upcoming
EC.)

--------------
STATEMENTS OF CONCERN OR SKEPTICISM
--------------


8. (U) A handful of other delegations made less helpful
interventions, ranging from vague to outright hostile.

--Pakistan: The Pakistani rep (Malik Azhar Ellahi) made the
most negative statement regarding the technical change. He
prefaced his statement by saying that Pakistan supports the
purpose of the proposal (to permit conversion) and that
Islamabad is still considering the proposal in light of the
recently issued evaluation from the DG. However, there are a
number of "questions" that need to be answered. He opined
that many States Parties appear to be moving forward as if
the final decision is "pre-judged" and that further
discussions would be necessary. Based on clearly uninformed
analysis, he questioned whether "conversion" was even
necessary given activities taken prior to Libya joining the
CWC to shift the Rabta facility to peaceful production. In a
crass effort to divide North/South support for the proposal,
he requested assurances that the proposed drug production,
given the involvement of western companies (e.g., Italian
firms),will be driven by altruistic purposes, not profit, in
effect questioning the credibility of Libya's stated
intentions. The core of his argument was that the proposed
change is more than a "technical change" and that another
process should be used to pursue it. Contrary to the
assertions of the DG, the Pakistani delegate insisted that
the proposal impacts the basic object and purpose of the CWC
by changing a deadline that was established for specific
reasons by the drafters of the CWC. He offered that seeking
a formal amendment would be difficult and not desirable for
most States Parties, and so raised the possibility (without
appearing to recognize the obvious contradictions in his
position) that other "novel ways" to address this issue could
be found. However, he offered no specifics.

--Russia: The Russian delegation expressed support for
permitting Libya, and any future States Parties, to convert
former CWPFs, but their "initial analysis" raised the
question of whether the technical change process is
appropriate since it modifies a treaty deadline, as well as
procedures for establishing a deadline for submitting the
conversion request (Part V, paras 65-66). Clearly not
wanting to push for an amendment, the Russians recommended
that other options be considered, including the possibility
of some kind of decision by the Conference short of an
amendment that would allow Libyan conversion. The Russians
indicated that these discussions, along with the recent DG
paper would be taken into account as Moscow develops its
"final position." (Note: The Russian Ambassador, who was
not at the consultations, previewed the Russian position in a
cordial bilateral meeting on the previous day at the Russian
Embassy. He gave the impression that the Russian position
was still in flux, with some division
of legal opinion in Moscow and that the DG paper had not been
factored in yet.)

--India: The Indian representative prefaced his statement by
stating clearly that the proposal was still being considered
in capital and that India "sympathizes" with African states'
interest, but then proceeded to make a series of unhelpful
comments. The del rep said he "needed to be convinced" that
this was in fact a "technical change," and asked for clearer
views from the TS, as well as the thinking behind the
original CWC drafters establishing a six-year deadline. He
also noted that the technical change for saxitoxin was less
complex than this, but nevertheless took almost two years to
finalize. He also (incorrectly) asserted that under this
process consideration stops with the EC, and that the CSP
should take a decision. (Note: After EC approval, all/all
States Parties are given 90 days to raise an objection,
which, if made, sends the issue to be taken up by the CSP.)

--Iran: The Iranian delegation stated that they support the
objective of the proposal and that the issue is still being
considered in capital. He believed that making any sort of
formal change to the CWC should be avoided and wanted greater
assurances that the technical change process is the correct
one for this instance. He offered an alternative that in
effect amounted to an "interpretation" of the CWC, namely
Article V, para 13, and Part V, paras 65-66, that would
override the restriction in Part V, para 72.

--Mexico: The Mexican delegation indicated the proposal was
still being considered in capital, but they supported its
intention, and viewed the paper with a "positive eye."

--Germany: Despite assurances provided by the German PermRep
the previous day, the visiting official from Berlin (Peter
Beerwerth) offered a lukewarm statement of support,
indicating that the proposal was still being considered in
capital. After the meeting, Beerwerth said that they did not
want to get out too far ahead until it had been presented to
"ministers." (Note: Beerwerth may have been partially
motivated by previous delays in Libya paying compensation for
the bombing of the LaBelle disco, and appeared unaware of
media reports that the initial payment had been made the
previous day.)


9. (U) Prompted by questions from the U.S. and UK about the
existence of "other options," the Legal Advisor could see no
other legal alternative that would permit conversion other
than those provided for in Article XV, namely either a formal
amendment or a technical change. He reasserted that it is
ultimately up to the EC to determine if the technical change
process is appropriate. Specifically in response to Iran, he
voiced the concern that their idea of trying to interpret
away the problem would set a dangerous precedent.


10. (U) States Parties that attended, but made no comments:
Kenya (co-sponsor),Nigeria, South Africa (co-sponsor),
China, Malaysia, UAE (non-EC),Bosnia (non-EC),Bulgaria
(non-EC),Romania (non-EC),Cuba, Peru, Canada (non-EC),
Denmark (non-EC),Finland (non-EC),New Zealand, and Sweden
(non-EC). (France was the most notable no-show at the
meeting.)
--------------
NEXT STEPS
--------------


11. (U) Overall, the consultations went about as expected,
with strong support offered by many, and usefully flushing
out questions from the "usual suspects," though all of the
latter indicated that the proposal is still being considered
in capital. Libyan, Italian, UK and U.S. dels agreed that
aggressive diplomacy in The Hague and in capitals is needed
in the coming week before the EC to give the proposal the
best chance of a getting consensus approval at the EC.
Specifically:

--Pakistan: the Pakistani rep appears to be "free-lancing"
on this issue, without specific guidance from capital, as has
been his habit on previous occasions. Delegations agreed to
recommend to capitals that U.S., UK and Italy demarche
Islamabad, while Libya will raise the issue with the
Pakistani Embassy in Tripoli. UK and Libyan dels will work
with the TS to directly address questions raised by the
Pakistani del.

--Russia: the Russian del appears to be working from
preliminary, but not definitive, instructions from capital.
Delegations recommend that U.S., UK and Italy demarche
Moscow, while the U.S. del will continue to follow-up with
the local del.

--Iran: the UK and Libya will follow-up with Iranian del,
with possible involvement of TS.

--India: because of preparation associated with an upcoming
India-EU summit, the Indian del has been, and will likely
continue to be, unable to give this issue much attention.
Delegations recommend that U.S., UK and Italy demarche New
Delhi, while the U.S. del will continue to follow-up with the
local delegation, emphasizing the need for a clear position
for the upcoming EC.

--Mexico: The U.S. delegation will follow-up with the
Mexican del to confirm its position and will inform
Washington if a demarche to capital is needed.

--Germany: The U.S. and UK delegations have already
expressed concern to the German del regarding its lukewarm
statement, and will continue to do so in the coming week.
(Note: A German del rep offered assurances that the FRG will
"be there for us in the end.") The U.S. del has informally
contacted Embassy Berlin to follow-up on the status of German
deliberations and the UK will formally demarche Berlin.


12. (U) Javits sends.
SOBEL