JCIC-XXXIII: LAWYERS, MEETING ON ARTICLE XVII AND

1. (U) This is JCIC-XXXIII-019.



2. (U) Meeting Date: November 19, 2008
Time: 3:30 P.M. - 5:00 P.M.
Place: U.S. Mission, Geneva



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SUMMARY


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3. (S) U.S. and Russian lawyers met to discuss Russian legal
requirements if the decision were made to extend START for a
5-year period pursuant to Paragraph 2 of Article XVII.
Unlike the case for the United States, which does not require
Senate advice and consent for such an extension, a proposed
law on ratification of the extension must be submitted to the
Duma and approved before the extension could enter into
force. Given the procedural requirements of submitting the
law to the Duma, extension of START could be delayed unless
other measures, such as "provisional application," were
deemed legally sufficient to cover any intervening period.
In any event, these requirements need to be taken into
account as the Russian MFA determines when to submit the
proposed law to the Duma. The lawyers also discussed likely
proposed changes to the U.S. draft JCIC Agreement on
Completion of Continuous Monitoring Activities. The changes
will be provided by the Russian side through diplomatic
channels.

End Summary.



4. (S) Brown asked Kotkova for an explanation of what she
had said to Miller (REFTEL) about the need for the Duma to
ratify the Parties' agreement to extend START, if such a
decision were made. She confirmed that, in accordance with
1995 Russian legislation on international treaties, the Duma
is responsible for reviewing and approving any agreement,
even an executive agreement, that would have the effect of
extending START, and she understood that an equivalent
process on the part of the U.S. side would not be necessary.
She explained that the Russian legal interpretation was that
the Duma, by approving the START Treaty which included a
provision permitting 5-year extensions, had not/not
authorized such extensions of the Treaty without further
action of the Duma. She said that the Russian legislation
for ratification of treaties provided for a 6-month period
for the Duma to consider a proposed action, which in this
case would be in the form of a law on ratification of the
extension, but that on an expedited basis it might be
possible to finish that process in about 2 weeks.



5. (S) Kotkova cautioned, however, that the process of
obtaining approval for CTR extension had dragged out much
longer, requiring the government to submit the proposed
extension law several times, during more than one 6-month
period. In such a case, however, she noted that the CTR
agreement had been "provisionally applied" so that there was
no gap in its application, and she raised the issue of
whether this might be a way to ensure that START did not
expire if Duma approval was not obtained in time. Brown
cautioned that provisional application might not be adequate
to constitute an effective extension of START, in particular
with regard to privileges and immunities, but he indicated
that this was a subject that required further legal analysis
if it appeared that provisional application might be
seriously under consideration in a contingency plan, and he
stated that this could be the topic of further discussion
between the lawyers at a subsequent session.



6. (S) Kotkova also noted the complexity of possible
post-START scenarios if, following a decision to extend
START, START parties other than the United States and Russia
insisted on the continuation of START even after START had
been superseded, with respect to the United States aQ
Russia, by a post-START agreement. She indicated that she
was planning to research these and other scenarios, some of
which she believed might have useful precedents in agreements
between the USSR and Yugoslavia that had been subsequently
superseded. Brown stated that he would also look into some
of the scenarios she had described to identify relevant U.S.
practice and approach.



7. (S) Kotkova then previewed a number of likely changes to
the draft JCIC Agreement on Completion of Continuous
Monitoring that Russia would be providing to the United
States through diplomatic channels several weeks after the
end of the JCIC session. She noted that the overall
assessment of the U.S. draft agreement and the two exchanges
of letters was very high among Russian experts and that the
changes would be relatively minor. She also stated that
there were no concerns on the part of Russia that, even after
START expiration, letters signed by JCIC representatives
would continue to be in effect, as long as, by their terms,
those letters were not limited in duration to START duration.
She explained that the JCIC representatives would be
considered to be duly authorized to sign on behalf of their
respective governments. Brown indicated that this was his
understanding as well and that there should be no need for
the parties to produce "full powers."



8. The more significant changes to the U.S.-proposed texts
previewed by Kotkova were:

- The term "monitored facility" should be used throughout
the text rather than "perimeter continuous monitoring area"
because some of the items mentioned in the draft agreement
were located outside the perimeter continuous monitoring area
and therefore the broader term, "monitored facility," was
more accurate.

- Belarus was insisting that all vehicles carrying equipment
and supplies must complete transit through Belarus before
START expiration or supersession, which would require a
drafting change to Section I, paragraph (c) of the draft
agreement.

- Russia would be proposing the use of another airportQor
inspection aircraft (Section II, paragraph 2(c)), based on
(unspecified) issues at the airport associated with the
monitored facility.

- Russia was prepared to allow requests for packing materials
to be handled on site between the in-country escort and the
monitoring team leader rather than through a 60-day advance
notification process (Section II, paragraph 2(a)).

- The terms "conveyed" and "transferred" would be
translated by a single Russian word, so it would be better if
the English text used a single word in this context as well.
Brown expressed his view that the term "conveyed" should be
able to be used in both contexts in English and agreed to
take this view back to the U.S. delegation.
- In the proposed exchange of letters on settlement of
accounts, the separate references to Annex 14 and Annex 16 in
the second paragraph could be simplified to a single
reference to both, because Annex 16 does not "modify" Annex
14, as stated in the U.S. text.



8. (U) Documents exchanged: None



9. (U) Participants:

U.S.

Mr. Brown

RUSSIA

Ms. Kotkova



10. (U) Taylor sends.
TICHENOR


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