NEGOTIATIONS TOWARD A CHEMICAL WEAPONS CONVENTION

C O N F I D E N T I A L SECTION 01 OF 08 AMMAN 000483 SIPDIS STATE FOR ISN/CB/SHARON GARNER AND NEA/ELA DOD FOR OFFICE OF NONPROLIFERATION POLICY E.O. 12958: DECL: 01/22/2015 TAGS: PARM PREL JO CWC BWC CBW SUBJECT: NEGOTIATIONS TOWARD A CHEMICAL WEAPONS CONVENTION CHALLENGE INSPECTION AGREEMENT - JORDAN REF: 05 AMMAN 9631 Classified By: Ambassador David Hale for reasons 1.4 (b,d). -------------- SUMMARY -------------- ¶1. (C-Rel Jordan) An interagency team led by Dr. David Cooper, Director for Nonproliferation Policy in the Office of the Secretary of Defense, met December 13 in Amman with Jordanian officials to work toward conclusion of a U.S. - Jordan Chemical Weapons Convention (CWC) Host Country Agreement (HCA). With inclusion of additional text that reinforces the reciprocal nature of the Memorandum of Understanding (MOU),both sides were able to reach ad ref agreement, with the understanding that the HCA would be finalized as soon as feasible. -------------- NEGOTIATIONS -------------- ¶2. (C-Rel Jordan) The Jordanian side opened the discussions by expressing concern that the MOU would change or interfere with meeting Jordan's CWC obligations during a challenge inspection event. Jordan also indicated concern that the U.S. may have a hidden agenda regarding its efforts to conclude an agreement as soon as possible. However, after the U.S. delegation provided an in-depth explanation of the USG's strategic motivations for seeking an agreement, the GOJ delegation asked for a joint "line-by-line" review of the text. ¶3. (C-Rel Jordan) During the line-by-line review, the Jordanian side inquired about challenge inspections at diplomatic sites and whether applicable provisions under the Vienna Convention would continue to apply. The U.S. delegation noted that the MOU was not intended to conflict with any treaty, including the Vienna Convention. ¶4. (C-Rel Jordan) The Jordanian delegation expressed its concern that the MOU arrangements appeared not to apply to both parties equally, suggesting that the main beneficiary of the arrangement would be the United States and not necessarily Jordan. Therefore, Jordan requested additional language be formulated to depict the reciprocal nature of the agreement more effectively. The U.S. delegation drafted text that was added to Part II, paragraph 1 that repeats the existing sentence, but reversing the Participants, names so as to reinforce the reciprocal nature of the arrangement. ¶5. (C-Rel Jordan) Jordan's delegation requested confirmation of its understanding that Part II, paragraph 5 meant that the terms of the MOU should be consistent with the Convention. The U.S. side confirmed that understanding. ¶6. (C-Rel Jordan) Jordan,s delegation asked the U.S. delegation to confirm its understanding that the MOU would be "politically binding" but not "legally binding." The U.S. delegation confirmed that understanding. ¶7. (C-Rel Jordan) The Jordanians questioned whether two-hour notification of a challenge inspection under Part IV, paragraph 1(c) was too short. The U.S. delegation responded that the short notification was necessary to ensure that CWC timelines would be met. ¶8. (C-Rel Jordan) In Part IV, paragraph 3(b),the Jordanian delegation questioned the role of the liaison officer. The U.S. delegation noted that if Jordan is the inspected State Party and, during the course of inspection a U.S. asset is included, U.S. liaison officers would act as advisors concerning access to the asset. ¶9. (C-Rel Jordan) The Jordanian side asked for clarification of Part IV, paragraph 6(a),which addresses escort responsibilities. The U.S. delegation explained that the CWC makes both parties responsible during a challenge inspection and that Jordan would provide escort to a U.S. facility. The U.S. delegation explained that the MOU provisions did not impose additional financial burdens on Jordan nor interfere with Jordan's sovereignty. ¶10. (C-Rel Jordan) The Jordanian delegation asked for clarification of Part IV, paragraph 4(b),which provides for consultations on the list of inspectors and inspection assistants. The U.S. delegation referred to the CWC, which provides for each State Party,s acceptance or non-acceptance of inspectors and inspector assistants whom the Technical Secretariat designates for challenge inspections. The CWC SIPDIS restricts the ability of inspectors and inspector assistants whom a State Party has not accepted to participate in verification activities at any place under the jurisdiction or control of such State Party. The delegation explained that it was possible for Jordan and the U.S. to have two different accepted inspector lists. The Jordanians questioned whether this conflicted with the CWC,s confidentiality provisions. The U.S. delegation responded SIPDIS that it did not believe that this situation would create a problem as inspector names are public. Further, the MOU does not supercede CWC provisions. ¶11. (C-Rel Jordan) Jordan,s delegation requested a clarification of Part VII on public affairs, noting its vagueness. The U.S. delegation explained that since public affairs is a sensitive issue, the Participants should consult to prevent them from contradicting each other through the press. ¶12. (C-Rel Jordan) The Jordanian delegation requested clarification of Part VIII on the protection of information. The U.S. delegation explained that the paragraph calls for consultations in a situation where inspectors request classified Jordanian documents that might reveal sensitive U.S. information. ¶13. (C-Rel Jordan) Jordan,s delegation expressed its satisfaction with all the clarifications provided, and with the additional text drafted for Part II, paragraph 1 of the agreement. The draft was agreed in substance pending review by respective authorities of each government. -------------- TEXT AGREED TO AD REF WITH REVISIONS -------------- ¶14. (C-Rel Jordan) The following is the agreed (ad ref) version of the MOU: (begin text of MOU) Memorandum of Understanding between the Government of the United States of America and the Government of Jordan concerning the conduct of challenge inspections pursuant to the Convention on the Prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction. The Government of the United States of America and the Government of Jordan, bearing in mind the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on Their Destruction, opened for signature on 13 January 1993 (hereinafter referred to As the Convention),including in particular Article IX of the Convention and its Parts II and X of the Annex on Implementation and Verification (hereinafter referred to as The Verification Annex); desiring to develop procedures to apply in cases in which a challenge inspection may affect the interests of both the United States of America and Jordan; have reached the following Understanding, which is intended to guide their conduct in such a challenge inspection: Part I: Definitions. ¶1. The terms used in this Memorandum of Understanding (hereinafter referred to as the memorandum) have the same meanings as in the Convention. ¶2. In addition to the terms defined in the Convention, for Purposes of this memorandum: a. "Participant(s)" refers to the Government of Jordan (hereinafter referred to as Jordan) and the Government of the United States of America (hereinafter referred to as the United States) or collectively to both. unless the context indicates otherwise, the term, "other Participant" refers to the Participant that is not the inspected State Party. b. "Government sovereign vessels or aircraft" refers to public vessels (including warships, as defined under customary international law as reflected in Article 29 of The 1982 United Nations Convention on the Law of the Sea, Or other ships owned or operated by a State and used only for Government noncommercial service) or State aircraft (as referred to in the Convention on International Civil Aviation of 1944). c. "Asset(s)" refers to any facility, equipment, area, building, location or government sovereign vessel or aircraft owned, operated, occupied by or under the control of the government of a Participant to this memorandum. This includes any facilities or areas utilized by the United States Government by agreement with Jordan; d. "Inspectable area" refers to the area within the perimeter (requested, alternative or final) and includes the 50 meter band measured outward from that perimeter. Part II: Principles and Scope ¶1. The principles and procedures in this memorandum apply to the conduct of any challenge inspection conducted in the territory of Jordan, or in any other place under its jurisdiction or control (hereinafter referred to as the territory of Jordan),in which the assets of the United States may be within or in the vicinity of the inspectable area. The principles and procedures in this memorandum apply to the conduct of any challenge inspection conducted in the territory of the United States, or in any other place under its jurisdiction or control (hereinafter referred to as the territory of the United States),in which the assets of Jordan may be within or in the vicinity of the inspectable area. ¶2. Based on the principle of territorial sovereignty, which is a basic principle reflected in the Convention and its integral parts, Jordan should exercise the rights and fulfill the obligations in the Convention as the designated inspected State Party or as the host State, as appropriate. For inspections within the scope of this memorandum, the United States, with regard to assets of the United States, should exercise the rights and fulfill the obligations of an inspected State Party in accordance with the Provisions of the Convention for those assets. ¶3. The Participants consider the effective implementation of challenge inspections a central element of the Verification regime under the Convention. Consequently, the Participants should apply the principles and procedures herein in keeping with this objective. ¶4. The Participants intend to cooperate closely and trustfully to ensure compliance with the relevant Provisions of the Convention. ¶5. Nothing in this memorandum should be interpreted as altering in any way any agreements in force between the Participants. This memorandum should be interpreted in a manner that is consistent with the Convention and any agreements entered into between either Participant and the Organization for the Prohibition of Chemical Weapons (OPCW). In the event there is a conflict between the Provisions of the Convention or any agreement between either Participant and the OPCW and this memorandum, the Provisions of the Convention or such agreement with the OPCW should take precedence. ¶6. Notwithstanding any language used herein, this memorandum does not create any rights or obligations for the Participants under international law. Part III: procedures for challenge inspections involving assets of Jordan on the territory of the United States. In the case of a challenge inspection in the territory of the United States in which the assets of Jordan may be within or in the vicinity of the inspectable area, the above mentioned principles and the following procedures are expected to apply mutatis mutandis. Part IV: Pre-inspection activities. ¶1. Notification between Participants. Re. Section D (32), Part II, and Section B (4, 6 & 11),Part X of the Verification Annex. a. If either of the Participants learns that deliberations are ongoing in the OPCW for a challenge inspection that would fall under the scope of this memorandum, it should so notify the other Participant. b. Upon receipt of a notification by the OPCW for the conduct of a challenge inspection on its territory, if on the basis of available information, the possibility cannot be ruled out by Jordan that an asset of the United States may be affected, Jordan should inform the United States within two hours of receipt of the notification, by contacting the United States nuclear risk reduction center (and the United States central command joint operations Center). The United States should promptly acknowledge receipt of the notification from Jordan. c. In the event that the United States is notified by the OPCW that it is designated as the inspected State Party for a challenge inspection within the territory of Jordan, the United States should inform Jordan within two hours of receipt of the notification, by contacting (name of Jordan Organization). Jordan should promptly acknowledge receipt of the notification from the United States. d. In either case, at a minimum, such notification between Participants should include the information enumerated in section d(32(b)-(f)),Part II and Section B(4 and 7),Part X of the Verification Annex. e. Any information described in subparagraph d above not provided when the notification by the OPCW of the challenge inspection is initially received should be provided to the other Participant as such information is received. Any notification or additional information provided by the OPCW to a Participant before the scheduled arrival of the inspection team at the point of entry should be provided to the other Participant no later than one hour after receipt. ¶2. The inspected State Party. Re. Part I (12) of the Verification annex. a. The Participants retain their full sovereign rights with regard to their Government sovereign vessels and aircraft. When Government sovereign vessels and aircraft are the sole object of an inspection, the Participant Owning or operating such assets should be the inspected State Party. If the Participant not owning these assets is designated the inspected State Party, the Participants should advise the OPCW that the Government vessel or aircraft is solely under the jurisdiction and control of the other Participant and that, therefore, the other Participant is properly the inspected State Party. b. Except for inspections solely of Government sovereign vessels or aircraft, either Participant may properly be the inspected State Party. However, if the assets within the perimeter are under the control of a single Participant, that Participant should be the inspected State Party. c. If both Participants agree that the other Participant should be the inspected State Party, the Participants should advise the OPCW that the other Participant should be designated the inspected State Party. if the inspection team arrives at the point of entry and the inspected State Party is not as the Participants advised, the inspected State Party designated by the requesting State Party should take the lead on pre-inspection activities, taking into account the concerns of the other Participant. d. If assets of the United States are affected by the inspection and Jordan is the inspected State Party, both Participants should advise the inspection team that the assets of both Participants are within the inspectable area and that the inspection affects the assets of both States Parties. They further should advise the inspection team that each should be responsible for inspection activities of their respective assets. ¶3. Government representation of the Participants. a. During any challenge inspection on Jordanian territory for which the United States is the inspected State Party, Jordan may, at its discretion, observe the conduct of the inspection and participate in activities that affect its assets. b. If Jordan is the inspected State Party and, on the basis of the available information, the possibility cannot be ruled out that the inspection could also affect assets of the United States, the United States may send liaison officers to observe and participate in pre-inspection activities, including the equipment inspection and perimeter negotiations, where possible, and to assist in the preparation and conduct of inspection activities affecting its assets. c. If the United States intends to send liaison officers, the United States should inform Jordan and provide a tentative list of these personnel within four hours of receipt of the Jordanian notification to the United States of a challenge inspection on Jordanian territory. d. Jordan should expedite the entry of the liaison officers, and their equipment and materiel (possibly including a mobile laboratory),into its territory, including, but not limited to, the provision of visas, aircraft diplomatic clearance, and assistance with customs, so that, where possible, the liaison officers of the United States may arrive at the point of entry and the inspection site before examination of inspection equipment and perimeter negotiations with the inspection team are initiated. e. If an asset of the other Participant is in the inspectable area, the inspected State Party should provide the liaison officer of the other Participant with a copy of the inspection mandate, as provided by the inspection team, at the time the mandate is received. If no such representative is present, the mandate should be provided upon arrival of any representative of the other Participant. f. Upon conclusion of the pre-inspection briefing, any liaison officer of the other Participant may be free to stay with the escort team. ¶4. Inspectors and inspection assistants. Re. Section A, Parts II and X of the Verification annex. a. If assets of the United States may be completely or partially included in the inspectable area, the Participants should, if prior to official notification of the inspection, request that the OPCW inspection team consist only of inspectors and inspection assistants approved by both Participants. b. Upon receipt of the list of inspectors and inspection assistants, the Participants should inform each other if any individuals on the list raise concerns. If an inspector or inspection assistant included on the list raises concerns, the Participants should consult on the degree of access to be provided to that individual. ¶5. Requesting State Party observer. Re. Article IX (12) of the Convention a. The Participants should consult regarding whether to accept the observer designated by the requesting State Party, whenever assets from both the Participants are within the inspectable area. b. For assets belonging only to one Participant, that Participant may limit an observer's access to those assets, irrespective of the access provided by the other Participant to the other Participant's assets. ¶6. Escorts and logistics. Re. Part I (9 and 25) and Section C (26),Part II of the Verification Annex. a. The responsibility of Jordan regarding the escorting of inspection teams on Jordanian territory should begin with the arrival of the inspection team at the point of entry and should end with the departure of the inspection team from the point of departure. In the case of inspections of assets of the United States, the United States should have the escort responsibility for the duration of the inspection at assets of the United States including, inter alia, lodging, food, transportation, communication means, working space, emergency medical care, security, and emergency assistance. b. Unless otherwise agreed, Jordan is expected to be responsible for escorting and supporting the inspection team and the observer outside the assets of the United States, including, inter alia, provision of meals, lodging, working space, transportation, communication means and, if necessary, medical and other emergency care from arrival at the point of entry until departure. ¶7. Inspection team equipment. Re. Section c (29),part ii of the Verification annex. a. The inspected State Party should inspect the inspection equipment in the possession of the inspection team to ascertain whether it meets the description of equipment authenticated in any attached documents or devices provided by the Technical secretariat in accordance with paragraphs 27-29 of Part II of the Verification Annex and whether it is safe to use in the inspectable area, consistent with paragraphs 40 and 43 of Part II of the Verification Annex. Unless otherwise mutually determined, the inspected State Party should exclude equipment not identified by those documents or devices, including equipment that has been altered. Such equipment should be stored at the point of entry. b. If an asset of the other Participant is, or may be, included within the inspectable area, the representatives of the other Participant may observe and participate in the inspection of equipment. Consistent with the Convention, the other Participant may prohibit or limit the use of such equipment affecting its assets; such restrictions may be different from limitations imposed by the inspected State Party. ¶8. Perimeter negotiations. Re. Section B (13-21),Part X of the Verification Annex. a. The Participants should cooperate closely in order to ensure the inspected State Party can fulfill its obligations in the process of designating the alternative and the final perimeters of the assets to be inspected. The inspected State Party should take the lead in all contacts with the inspection team regarding the designation of the perimeter. b. If an asset of the other Participant is within the inspectable area, including the 50 meter band, the inspected State Party should in all cases consult the other Participant regarding the requested and final perimeter. In addition, the inspected State Party should obtain the concurrence of the other Participant before: (1) Proposing an alternate perimeter that would include An asset of the other Participant within the inspectable area that would not have been so included under the requested perimeter, or (2) accepting a final perimeter that would place an asset of the other Participant within the 50 meter band. c. If, before commencing perimeter negotiations with the inspection team, it cannot be determined whether an asset of the other Participant is included within the inspectable area, the other Participant may, at its discretion and through its liaison officers, observe perimeter negotiations until a determination can be made as to whether an asset of the other Participant is so included. d. Whenever an asset of the other Participant is within the inspectable area, the other Participant may, at its discretion, take part in all negotiations with the inspection team concerning the alternative and final perimeters, as it affects that asset. The Participants should consult on the implications of any proposals that might be made on an alternative perimeter, and before any decision is made on the final perimeter. e. If the inspected State Party is not changed as the Participants advised in accordance with Part IV(2)(c) of this memorandum, the inspected State Party should recognize the primacy of the other Participant in perimeter negotiations and access to the other Participant's assets. f. The liaison officers should support the escort team in designating the final perimeter of the assets to be inspected as well as in preparing and conducting the pre- inspection briefing. Part V: Conduct of perimeter and inspection activities. ¶1. General. Re. Section b (20 and 35-37) and Section C of Part X of the Verification Annex. a. The representatives of the inspected State Party should not refer to or provide information on assets belonging to the other Participant outside the inspectable area without the consent of the other Participant. As necessary, the Participants should consult during the inspection regarding methods for minimizing the impact of the inspection on activities or assets not included in the inspectable area. b. Transfer of samples for analysis outside of the inspectable area. Re. Section E (55 and 57),Part II of the Verification Annex. On the territory of Jordan, transportation or mailing of samples for analysis at laboratories should be consistent with the Convention and subject to the relevant Jordanian legal provisions regarding the transportation or mailing of hazardous substances. In the event the United States is the inspected State Party, the United States intends to advise the Technical Secretariat about our preference for on-site analysis as well as considerations in selecting appropriate OPCW- designated laboratories, should we agree to that course of action for assets under our control. c. Extension of the period of inspection. Re. Section E (59),Part II, and Section C (57),Part X of the Verification Annex. A request for the extension of the period of inspection should be granted or rejected by mutual agreement between the Participants, if the assets of the other Participant are affected by the inspection. ¶2. Assets belonging only to one Participant. a. Each Participant should control all inspection activities at its assets. All access to any Government sovereign vessels or aircraft should be controlled by the Participant owning that asset. The inspected State Party, consistent with subparagraph (b) below, may observe the conduct of an inspection with respect to an asset of the other Participant. b. Whenever an asset of the other Participant is included, fully or partially, within the inspectable area, the inspected State Party should permit the other Participant to implement the Provisions specified in Section c of Part X of the Verification Annex with respect to the other Participant's assets in the perimeter and should permit the other Participant to control access to its assets in the 50 meter band extending from the perimeter. The other Participant may implement these provisions independently of the manner in which the inspected State Party implements these provisions under the Convention. c. The inspected State Party should ensure that the other participant has up to 108 hours from the inspection team's arrival at the point of entry before the other Participant must provide the inspection team access to its assets inside the perimeter. d. Throughout the inspection, the other Participant should make every reasonable effort to ensure that the inspected State Party can demonstrate its compliance with Article IX of the Convention and Part X of the Verification Annex. e. Whenever an asset of the other Participant is in the inspectable area, the inspected State Party should take into account any recommendations of the other Participant concerning ways to reduce or eliminate the potential impact of inspection activities on assets of the other Participant. f. At boundaries of facilities utilized by the other Participant, or in the course of inspection activities inside facilities utilized by the other Participant, the other Participant has the right to manage photography and video-taping consistent with paragraph 48 of Part II and paragraphs 24, 26, and 47 of Part X of the Verification Annex. ¶3. Assets jointly owned, operated, occupied by or under the control of both Participants. a. The Participants should jointly decide on all inspection activities with respect to joint assets before determining the extent and nature of the inspection team's access to, or before providing information about, the asset. b. The inspected State Party should take the lead in all contacts with the inspection team with regard to access or information to be given to the inspection team relating to the asset. Part VI: Post inspection activities. ¶1. Inspection reports. Re. Section d (59),Part X of the Verification Annex. In the case of any challenge inspection in which any part of an asset of the other Participant is within the inspectable area, the inspected State Party should provide the other Participant with a copy of the preliminary inspection report within 24 hours of receipt and a copy of the draft final inspection report within 48 hours of receipt from the Technical secretariat. The other Participant may identify any information and data in the draft final inspection report not related to chemical weapons that are, in its view, of a sensitive character. The inspected State Party should propose to the Technical Secretariat those changes requested by the other Participant to protect this information. The other Participant should submit timely comments and proposed changes to the draft final inspection report. Such comments should be submitted as soon as possible, but in no case later than six days after receipt of the report from the inspected State Party. The Participants should consult on the incorporation of such comments by the inspected State Party. ¶2. Reimbursement of costs. Re. Section C (25, 26),Part II, and Section C (56),Part X of the Verification Annex. a. The Participants should consult on any inspection costs. b. Following consultations and reconciliation, the other Participant should submit its claims for remuneration to the inspected State Party for inclusion in the inspected State Party's submission to the OPCW. c. The inspected State Party should seek reimbursement of any costs recoverable from the OPCW in relation to the inspection. ¶3. Following the completion of an inspection, the Participants should consult to consider the need for any changes to the procedures under this memorandum. Part VII: Public affairs. The Participants should consult to consider joint or independent statements to the press, the requesting State Party, the Executive Council, the Conference of the States Parties, the Technical Secretariat, or other States Parties to the Convention. The Participants should also discuss relations with the media. Part VIII: Protection of information. No information provided by one Participant to the other Participant, pursuant to this memorandum should be made available publicly without the consent of the Participant providing the information. Part IX: Implementation coordination. The Participants should designate an official channel to address and resolve any questions or disputes that may arise concerning implementation of this memorandum. Part X: Conclusion. ¶1. The principles and procedures in this memorandum may be modified by written agreement of the Participants. ¶2. This memorandum is effective upon signature. ¶3. This memorandum may be terminated by either Participant upon 90 days written notice to the other Participant. Signed at this day of 2006, in the English and Arabic languages. For the Government of the For the Government of United States of America Jordan (end text of MOU) ¶15. (U) The Jordanian delegation included: a. Prof. Hasan Al-Salah, Governor for the Prohibition of Chemical Weapons Department, Ministry of the Interior. b. Mr. Jeorge Nozha, Lawyer Consultant, Ministry of the Interior. c. Akram S. Harahsheh, Foreign Ministry. d. Saker Malkawi, Foreign Ministry. e. Col Ahmad Mhedat, Army Force. f. Left Col. Han Mahameed, Civil Defence. g. Left. Col. Odah Khalayla, Public Security. h. Ms. Ida Alhysen, Ministry of Justice. ¶16. (U) U.S. delegation officials included: a. Dr. David Cooper, Director, Nonproliferation Policy, International Security Policy, OASD. b. COL Rick Smart, Special Assistant and Senior Policy Analyst, Nonproliferation Policy for Chem/Bio Weapons. c. Dr. Deborah Ozga, J5 (WTO),Joint Staff. d. Ms. Christine Choi, Department of Defense Office of General Counsel, International Affairs. e. Mr. Michael D. Shaw, Combating WMD Division, U.S. Central Command f. Mr. Mark Petzolt, poloff, U.S. Embassy Amman Hale