CHEMICAL WEAPONS CONVENTION (CWC) HOST COUNTRY

C O N F I D E N T I A L SECTION 01 OF 07 KUWAIT 000109 SIPDIS SIPDIS FOR NEA/ARPI - BERNS AND ISN/CB - HANLINE; THE HAGUE FOR CWC DEL E.O. 12958: DECL: 01/14/2016 TAGS: PARM PREL PGOV KU SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC) HOST COUNTRY AGREEMENT (HCA) NEGOTIATIONS WITH KUWAIT REF: A. 1/12/06 HANLINE-BROWN E-MAIL ¶B. 05 KUWAIT 3641 ¶C. 05 STATE 146441 ¶D. 05 KUWAIT 3263 AND PREVIOUS Classified By: Deputy Chief of Mission Matthew H. Tueller for reasons 1 .4(b) and (d) ¶1. Summary: (C-Rel Kuwait) On December 17, an interagency team led by OSD Director for Nonproliferation Policy, Dr. David Cooper, met with Kuwaiti officials to work towards conclusion of the HCA. a. Kuwait had several minor text revision proposals, all of which the U.S. delegation accepted ad referendum. Revisions focused on highlighting a few areas of Kuwaiti interest such as terms for agreement revisions, challenge inspection bilateral notification procedures, the reciprocal nature of the agreement, primacy of the CWC in the event of a conflict between the terms of the HCA and the requirements of the CWC, and the need to add text to facilitate parliamentary review. b. With the exception of one area of bracketed text (that both sides have indicated agreement on) that Kuwait requests additional time to consider, the parties reached ad referendum agreement on the text. Negotiation Deliberations -------------- ¶2. (C-REL Kuwait) Initially, Kuwaiti officials had several questions and some concerns regarding the text of the Memorandum of Understanding (MOU). Kuwaiti comments were directed towards: (1) (C-Rel Kuwait) Obtaining assurances that the MOU did not conflict with the CWC: The U.S. delegation explained the relationship between the proposed MOU and the CWC, noting that the MOU was entirely consistent with the CWC and that other States (besides the United States) have or are pursuing similar agreements as well. The delegation also noted that the MOU served as a contingency plan to ensure that the parties have procedures in place to meet CWC challenge inspection timelines. Additionally, both parties agreed to add the following text to Section IV, paragraph 2 to provide that in event of a conflict, the provisions of the CWC will take precedence over the terms of the MOU: "In the event of a conflict between the terms of this Memorandum of Understanding and the Convention, the provisions of the Convention will take precedence." (2) (C-Rel Kuwait) Clarification on challenge inspection bilateral notification procedures, expectations and procedures for notification acknowledgments: Specifically, the GOK requested additional text that requires the receiving party to confirm receipt of a challenge inspection notification from the notifying party and addresses what the parties should do if confirmation of receipt is not provided. The delegations agreed to include the following language in Part I of the MOU: "The United States should acknowledge receipt of notification of the challenge inspection from Kuwait within two hours of the initial notification. The acknowledgment should confirm the available information received from Kuwait and will provide Kuwait with the name and telephone number of the U.S. point of contact for transmission of any additional information." "In the event that Kuwait does not receive an acknowledgment from the United States within the two-hour time period, Kuwait should proceed with preparations for the challenge inspection under the Convention until the United States provides such acknowledgment." "Kuwait should acknowledge receipt of notification of the challenge inspection from the United States within two hours of the initial notification. The acknowledgment should confirm the available information received from the United States and will provide the United States with the name and telephone number of the Kuwait point of contact for transmission of any additional information." "In the event that the United States does not receive an KUWAIT 00000109 002 OF 007 acknowledgment from Kuwait within the two-hour time period, the United States should proceed with preparations for the challenge inspection under the Convention until Kuwait provides such acknowledgment." (3) (C-Rel Kuwait) The extent of Kuwaiti involvement in inspections when no Kuwaiti assets are subject to challenge inspection activity: The GOK asked whether there would be any problem with a Kuwaiti representative joining the escort team in the event of a challenge inspection on the territory of Kuwait that involves only U.S. assets. After lengthy discussions, delegations agreed to add the following text as Part III.2.c. of the MOU: "If it cannot be ruled out that one or more assets of Kuwait would be included fully or partially within the inspectable area and the United States is designated the inspected State Party, the United States should permit Kuwaiti representatives to accompany the inspection team." "If it cannot be ruled out that one or more assets of the United States would be included fully or partially within the inspectable area and Kuwait is designated the inspected State Party, Kuwait should permit United States representatives to accompany the inspection team." (4) (C-Rel Kuwait) Procedures for terminating or modifying the agreement: The GOK asked that the HCA's termination provisions be changed from requiring 90 days advance notice to 180 days advance notice. Kuwait also requested that the effective term of the MOU be for one year, to be renewed automatically on an annual basis. The U.S. delegation agreed to change the provisions in the diplomatic note (dipnote) as requested. (5) (C-Rel Kuwait) Inclusion of text to facilitate Kuwaiti Parliamentary approval: Kuwait requested that the text include a statement explaining why the two parties are entering into an HCA so as to facilitate adoption of the MOU by Kuwait's parliament. The U.S. delegation suggested additional text be included in the dipnote; however, after the meeting, the Kuwaitis asked that the text be contained in the MOU. (6) (C-Rel Kuwait) Clarification regarding challenges to OPCW inspected State Party (ISP) designations: Kuwait stated that based on the principle of sovereignty, Kuwait believed that it should always be designated as the inspected State Party for any challenge inspection occurring on its territory. Kuwait noted that the current formulation in Part II, paras. ¶4. b. and c. were unacceptable as they contemplated instances in which the United States could be designated the ISP where a challenge inspection occurs on Kuwaiti territory. The U.S. explained that there would be some cases, particularly where the U.S. has the predominant interest with respect to the asset being inspected, in which it would be appropriate for the United States to be designated as the inspected State Party, and that in any case, the ISP is designated by the requesting State Party and by the OPCW. The parties agreed to a revised formulation that would require the parties to consult on the issue of ISP designation: "If a Participant is designated as the inspected State Party and both Participants agree that the other Participant would have the predominant interest and should be the inspected State Party, the Participants should consult concerning the possibility of informing the Director-General and the Executive Council of the Organization for the Prohibition of Chemical Weapons to seek a change in designation." Kuwait requested that the current and proposed language remain as bracketed text until Kuwaiti authorities have reviewed the new formulation. (7) (C-Rel Kuwait) Inclusion of text that the English and Arabic language versions are equally authentic: After the discussions, a member of the Kuwaiti delegation asked to have text included stating both versions of the MOU are equally authentic. (8) (C-Rel Kuwait) Kuwait indicated that the MOU would be unclassified and that it would publish the MOU after its SIPDIS adoption. REVISED DIPNOTE AND MOU TEXT -------------- KUWAIT 00000109 003 OF 007 ¶5. (C-Rel Kuwait) The following is the agreed (ad referendum) version of the dipnote and MOU: (begin text of dipnote) CONFIDENTIAL / RELEASABLE TO KUWAIT SIPDIS The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs of the State of Kuwait and has the honor to refer the Ministry to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993, hereinafter referred to as "the Convention." Recognizing the shared commitment to States Parties obligations under the Convention, and taking into account the need for close cooperation in the event of a challenge inspection on the territory of one country that may affect any asset of the other country, and in order to facilitate the implementation of these obligations, the Embassy suggests the arrangements and principles to guide the conduct of challenge inspections on the territory of Kuwait as set forth in the attached annex. The arrangements and principles should apply to the conduct of any challenge inspection conducted on the territory of Kuwait in which the assets of the United States may be within or in the vicinity of the inspection site, but are not intended to create legally binding obligations. In the event of a challenge inspection of any facility of Kuwait located on the territory of the United States, these arrangements and principles should apply mutatis mutandis. If these arrangements and principles are acceptable to the Government of the State of Kuwait, the Embassy suggests that this note, and the attached Memorandum of Understanding and the Ministry's reply, and the attached Memorandum of Understanding, constitute an understanding between the Government of the United States and the Government of the State of Kuwait on the matters referred to therein. The arrangements and principles in the Memorandum of Understanding may be modified in writing by the United States and Kuwait, hereinafter referred to as the Participants. The Embassy further suggests that this understanding be effective for one year upon the date of the Ministry's reply, to be renewed on automatically on an annual basis unless terminated by either Participant after giving 180 days written notice to the other Participant. Complimentary Closing Attachment: Memorandum of Understanding (end text of dipnote) (begin text of annex) Memorandum of Understanding Concerning the Conduct of Certain Challenge Inspections Pursuant to the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction Between the Government of the United States of America and the Government of the State of Kuwait Referring to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993, the Government of the United States of America and the Government of the State of Kuwait (hereinafter referred to as the "Participants") have reached the following arrangements and principles to guide the conduct of challenge inspections on the territory of Kuwait. These arrangements and principles should apply to the conduct of any challenge inspection to be conducted on the territory of the State of Kuwait (hereinafter "Kuwait") in which the assets of the United States of America (hereinafter the "United States") may be within or in the vicinity of the inspection site. In the event of a challenge inspection of any facility of Kuwait located on the territory of the United States, these arrangements and principles should apply mutatis mutandis. KUWAIT 00000109 004 OF 007 ¶I. Notification of Challenge Inspections ¶1. Kuwait should notify the United States within two hours of receipt of a notification of a challenge inspection on the territory of Kuwait or in any other place under the jurisdiction or control of Kuwait. Kuwait's initial notification to the United States should provide all available information concerning the inspection, such as the information set forth in Section B (Paragraphs 4 and 7) of Part X and Section D (Paragraph 32) of Part II of the Verification Annex of the Convention (hereinafter referred to as "the Verification Annex"). Any further information about the inspection that becomes available after the initial notification should also be provided to the United States within two hours. ¶2. The point of contact for notifications to the United States should be the United States Nuclear Risk Reduction Center, 001-202-647-9166, fax 001-202-647-4892. ¶3. The United States should acknowledge receipt of notification of the challenge inspection from Kuwait within two hours of the initial notification. The acknowledgment should confirm the available information received from Kuwait and should provide Kuwait with the name and telephone number of the U.S. point of contact for transmission of any additional information. ¶4. In the event that Kuwait does not receive an acknowledgment from the United States within the two-hour time period, Kuwait should proceed with preparations for the challenge inspection under the Convention until the United States provides such acknowledgment. ¶5. The United States should notify Kuwait within two hours of receipt of a notification of a challenge inspection, if the United States is notified as inspected State Party under a challenge inspection concerning assets of the United States within the territory of Kuwait, and the United States should provide the same information within the same time limits as described in paragraph 1 above. 6 The point of contact for notification to Kuwait should be the National Security Committee to Implement the Convention on the Prohibition of Chemical Weapons, 965-483-3351, fax 965-483-6444. ¶7. Kuwait should acknowledge receipt of notification of the challenge inspection from the United States within two hours of the initial notification. The acknowledgment should confirm the available information received from the United States and should provide the United States with the name and telephone number of the Kuwait point of contact for transmission of any additional information. ¶8. In the event that the United States does not receive an acknowledgment from Kuwait within the two-hour time period, the United States should proceed with preparations for the challenge inspection under the Convention until Kuwait provides such acknowledgment. II. Pre-Inspection Activities ¶1. Requesting State Party Observer The Participants should consult regarding whether to accept an observer designated by the requesting State Party whenever assets from both Participants may be within the inspectable area. ¶2. Host State Party Responsibilities For challenge inspections where the United States is the inspected State Party, Kuwait should facilitate the inspection and should provide for the necessary support to enable the inspection team to carry out its tasks in a timely and effective manner as set forth in Section C (Paragraph 19) of Part II of the Verification Annex. ¶3. Equipment Inspection When the Participant that is not the inspected State Party may have assets within the inspectable area, that Participant may send representatives to observe and participate in pre-inspection activities, including equipment inspection, and to assist in the preparation of its assets for inspection. KUWAIT 00000109 005 OF 007 ¶4. Erroneous Identification of Inspected State Party a. It is the understanding of the Participants with regard to the phrase, "predominant interest," used in this Memorandum of Understanding, that each Participant is expected to retain its full sovereign rights with regard to its sovereign vessels and aircraft. Sovereign vessels or aircraft refers to 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) and state aircraft (as referred to in the Convention on International Civil Aviation of 1944). If a request for a challenge inspection identifies a Participant as the inspected State Party for a challenge inspection solely of a government sovereign vessel or aircraft of the other Participant, both participants should advise the Organization for the Prohibition of Chemical Weapons (OPCW) that the government sovereign vessel or aircraft is solely under the jurisdiction and control of the other Participant and that, therefore, the governments of both Participants consider that the other Participant is properly the inspected State Party. (b. When Kuwait is designated as the Inspected State Party for inspection of a facility in which the United States would have the predominant interest, the United States and Kuwait should consult concerning the possibility of informing the Director-General and Executive Council of the Organization for the Prohibition of Chemical Weapons and seeking a change in designation. c. When the United States is designated as the Inspected State Party for inspection of a facility in which Kuwait would have the predominant interest, Kuwait and the United States should consult concerning the possibility of informing the Director-General and Executive Council of the Organization for the Prohibition of Chemical Weapons and seeking a change in designation.) Replaces b. and c. above. (b. If a Participant is designated as the inspected State Party and both Participants accept that the other Participant would have the predominant interest and should be the inspected State Party, the Participants should consult concerning the possibility of informing the Director-General and the Executive Council of the Organization for the Prohibition of Chemical Weapons to seek a change in designation.) ¶5. Perimeter Negotiations 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 (i) 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 (ii) accepting a final perimeter that would place an asset of the other Participant within the 50-meter band. III. Conduct of Inspections ¶1. General The Participants should coordinate regarding contacts with the inspection team with regard to access or information to be given to the inspection team by the inspected State Party concerning an asset of the other Participant. The representatives of the inspected State Party should not refer to, nor provide, information on assets belonging to the other Participant outside the inspectable area without the consent of the other Participant. ¶2. Arrangements for Access to United States or Kuwaiti Assets a. Whenever one or more assets of the United States would be included, fully or partially, within the inspectable area and Kuwait is the inspected State Party, Kuwait should permit the United States to implement the provisions specified in Section C of Part X of the Verification Annex with respect to assets of the United States. Whenever one or more assets of KUWAIT 00000109 006 OF 007 Kuwait would be included, fully or partially, within the inspectable area and the United States is the inspected State Party, the United States should permit Kuwait to implement the provisions specified in Section C of Part X of the Verification Annex with respect to its assets. b. In order to facilitate inspection activities, the United States intends to send experts from Washington, DC and their necessary equipment, which may include a mobile laboratory. The mobile laboratory would be used to support on-site sampling and analysis. The Participants periodically intend to advise each other regarding personnel, equipment and materiel requirements for hosting or participating in inspections and to provide appropriate guidance to each other on any domestic restrictions or entry requirements that may apply. c. If it cannot be ruled out that one or more assets of Kuwait would be included fully or partially within the inspectable area and the United States is designated the inspected State Party, the United States should permit Kuwaiti representatives to accompany the inspection team. d. If it cannot be ruled out that one or more assets of the United States would be included fully or partially within the inspectable area and Kuwait is designated the inspected State Party, Kuwait should permit United States representatives to accompany the inspection team. IV. Additional Provisions ¶1. Definitions The terms used in this Memorandum of Understanding have the same meaning as in the Convention. In addition, "asset" means any equipment, area, building, or location owned, operated, occupied by, or under the control of a Participant, and "inspectable area" refers to the area within the requested or final perimeter or in the vicinity of the requested or final perimeter. The United States and Kuwait are referred to herein as "the Participants." ¶2. Effect On Existing Agreements This Memorandum of Understanding should be interpreted consistently with the Convention, any agreements in place between the United States and Kuwait, and any agreements entered into between either Participant and the Organization for the Prohibition of Chemical Weapons. In the event of a conflict between the terms of this Memorandum of Understanding and the Convention, the provisions of the Convention should take precedence. ¶3. Challenge Inspection Exercises In order to prepare for the possibility of challenge inspections, the United States and Kuwait may conduct joint challenge inspection exercises. Such exercises should be based upon this Memorandum of Understanding. ¶4. Revisions to this Memorandum of Understanding This Memorandum of Understanding may be modified in writing by the United States and Kuwait. (end text of annex) The Delegations -------------- ¶6. (U) The Kuwaiti officials included: a. Mr. Ghanim Sager Al-Ghanim Director, Legal Affairs Department, MFA. b. Col. Barak Al-Barges, Member, National Authority. c. Mr. Hamad Rashed Al-Mari, Legal Affairs Department, MFA, Member, National Authority. d. Lt. Col. Majed Al-Shatti, Ministry of Defense, Member, National Authority. e. Mr. Faisal Al-Amari, National Petroleum Company, Member, National Authority. f. Ms. Janan Al-Shayji, Engineer, Ministry of Defense, Member, National Authority. g. Mr. Salem Rashid Al-Shebli, Legal Affairs Department, Member, National Authority. KUWAIT 00000109 007 OF 007 ¶7. (U) The U.S. Delegation included: a. Dr. David Cooper, Director, Nonproliferation Policy, International Security Policy, OASD. b. COL Rick Smart, Special Assistant & Senior Policy Analyst, Nonproliferation Policy for Chemical and Biological Weapons. c. Dr. Deborah Ozga, J5 (WTO),Joint Staff. d. Ms. Christine Choi, DoD Office of General Counsel, International Affairs. e. Mr. Jay Hanline, Head, U.S. National Authority Coordinating Staff, DOS. f. Ms. Natalie E. Brown, Political Chief, U.S. Embassy Kuwait. ********************************************* Visit Embassy Kuwait's Classified Website: http://www.state.sgov.gov/p/nea/kuwait/ You can also access this site through the State Department's Classified SIPRNET website ********************************************* LeBaron