Identifier
Created
Classification
Origin
08USOSCE278
2008-11-18 17:18:00
CONFIDENTIAL
Mission USOSCE
Cable title:  

CFE/JCG: RUSSIA AGAIN ASSERTS IT HAS A LEGAL BASIS

Tags:  KCFE OSCE PARM PREL 
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VZCZCXRO3929
OO RUEHFL RUEHLA RUEHMRE RUEHROV RUEHSR
DE RUEHVEN #0278/01 3231718
ZNY CCCCC ZZH
O 181718Z NOV 08
FM USMISSION USOSCE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6048
RUCNOSC/OSCE COLLECTIVE
INFO RUCNCFE/CONVENTIONAL ARMED FORCES IN EUROPE PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
RUEKDIA/DIA WASHDC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
RUESDT/DTRA-OSES DARMSTADT GE PRIORITY
RHMFISS/CDR USEUCOM VAIHINGEN GE PRIORITY
RUEKJCS/JOINT STAFF WASHDC//J5-DDPMA-IN/CAC/DDPMA-E// PRIORITY
RUEADWD/DA WASHINGTON DC PRIORITY
RUEAHQA/HQ USAF WASHINGTON DC//XONP// PRIORITY
RUEASWA/DTRA ALEX WASHINGTON DC//OSAE PRIORITY
C O N F I D E N T I A L SECTION 01 OF 03 USOSCE 000278 

SENSITIVE
SIPDIS

STATE FOR VCI/CCA, EUR/RPM, L/NPV
NSC FOR HAYES, JCS FOR J5/NORWOOD/CAMPBELL,
OSD FOR ISA/PERENYI

E.O. 12958: DECL: 11/19/2018
TAGS: KCFE OSCE PARM PREL
SUBJECT: CFE/JCG: RUSSIA AGAIN ASSERTS IT HAS A LEGAL BASIS
FOR "SUSPENSION"

REF: USOSCE 247

Classified By: Chief Arms Control Delegate Hugh Neighbour,
for reasons 1.4(b) and (d).

C O N F I D E N T I A L SECTION 01 OF 03 USOSCE 000278

SENSITIVE
SIPDIS

STATE FOR VCI/CCA, EUR/RPM, L/NPV
NSC FOR HAYES, JCS FOR J5/NORWOOD/CAMPBELL,
OSD FOR ISA/PERENYI

E.O. 12958: DECL: 11/19/2018
TAGS: KCFE OSCE PARM PREL
SUBJECT: CFE/JCG: RUSSIA AGAIN ASSERTS IT HAS A LEGAL BASIS
FOR "SUSPENSION"

REF: USOSCE 247

Classified By: Chief Arms Control Delegate Hugh Neighbour,
for reasons 1.4(b) and (d).


1. (SBU) Summary: At the November 18 JCG, Italy, Poland,
and the United States called out Russia for refusing their
recent requests for CFE inspections. There was broad support
for the Italian, Polish, and U.S. statements as several
delegations voiced concern that Russia's continued
noncompliance threatened further erosion of the CFE
Treaty. Russia staunchly held its ground that international
customary law provides a legal basis for "suspension" of CFE,
an argument it previously delivered during the October 14 JCG
and in writing. Russia criticized the U.S. for not having
put forth any substantive evidence--even after 6 weeks--to
the contrary.


2. Action request: Please see paragraph 16. End Summary.

Protest Against Russia's Refusals...Yet, Again
- - - - - - - - - - - - - - - - - - - - - - - -


3. (SBU) The Joint Consultative Group (JCG) met on November
18 under the Chairmanship of Romania (Pavel). Italy, Poland,
and the U.S. called out Russia for refusing their November
requests for CFE inspections. The U.S. (Neighbour) provided
a brief summary of U.S. CFE implementation during the past
three weeks alone, which included several notifications
beyond that regarding an inspection in Russia. Neighbour
noted that the U.S. regrets Russia's counterproductive
refusal which prevented the U.S. from carrying out a
verification measure in accordance with the Treaty.
Observing that rejections of inspections are clear acts of
non-compliance with Treaty obligations, he noted that
"neither the CFE Treaty nor customary international law"
provides a basis for Russia's actions.

Russia Again Asserts "Suspension" Legal
--------------


4. (SBU) Russia (Ulyanov) said it had not intended to take
the floor, but believed that the Italian, Polish, and U.S.
statements repeated a matter that had come up several times,
which he characterized as "play acting." Ulyanov said he was

particularly struck by the U.S. statement that neither the
CFE Treaty nor customary international law provided a basis
for Russia's actions.


5. (SBU) Ulyanov recalled Russia's October 14 JCG statement
(see Reftel) in which he provided a long dissertation, later
distributed in writing to all delegations, on why Russia
considers its suspension of CFE to be in accordance with
customary international law and the Vienna Convention on
Treaties. Ulyanov claimed that, in fact, former President
George Bush had referred to the same issue in 1991 during a
U.S. Senate address. Ulyanov demanded that the U.S. "stop
referring to our actions as illegal, or come out with some
real basis for your argument!" Ulyanov sharply criticized
the U.S. for making "unfounded accusations" that were "not a
very helpful form of dialogue."
Allies Dismayed at Russian Accusation of "Play Acting"
-------------- --------------


6. (SBU) The UK, France, Czech Republic, Romania, Germany,
Portugal, and Turkey then spoke out in support of the
Italian, Polish, and U.S. statements. The UK (Gare) did not
believe we were "play acting" at all. France (Simonet)
echoed the UK's comments and believed that this was "far from
being a game," and that Russia's actions were "paralyzing"
CFE. The Czech Republic (Reinohlova) said that CFE remains
the "cornerstone" of European security and urged all States
Parties to adhere to all inspection requests. Romania
(Neculaescu) said that Russia's actions were contributing to
the "erosion" of the Treaty.


USOSCE 00000278 002 OF 003



7. (SBU) Germany (Schweizer),which also said did not intend
to take the floor, felt compelled to address Russia's
accusation of "play acting." Schweizer said that the JCG
forum was the "sole" and "right" forum to deal with issues
related to CFE implementation. He referred to Germany's
October 28 JCG statement, in which Germany announced that it
planned to continue exercising its Treaty inspection rights
even in the face of Russian refusal. Schweizer again
referred to the NAC statements on March 28 and April 3,
reminding Russia that NATO supports the parallel actions
package and that it was the way to resolve the current
impasse.


8. (SBU) In reply to Russia, the U.S. (Neighbour) said that
the U.S. joined with others in stating that it does not
consider recent statements made in the JCG to be "play
acting." Neighbour said that the U.S. believes noncompliance
is a serious issue that further complicates the current
impasse on CFE, and "neither the CFE Treaty nor customary
international law" provides a basis for Russia's actions.
Neighbour also called on Russia to return to full compliance
with the Treaty.

Does Russia Have a Legal Basis? We Need to Say Why Not
- - - - - - - - - - - - - - - - - - - - - - - - - - - -


9. (SBU) Russia (Ulyanov) again recalled his October 14 JCG
statement in which he put forward what he considered a
"detailed explanation" that under customary international
law, Russia has a basis for its actions. Ulyanov again said
that former President George Bush in an address before the
U.S. Senate in 1991 referred to cases when State Party might
be justified in stopping fulfillment of its Treaty
obligations. (NOTE: Per Reftel, Russia was referring to an
article by article analysis prepared by the Department of
State for a presidential address to the Senate on July 2,
1991 wherein the Department noted the "right of withdrawal"
is in addition to "any other rights of States Parties
including suspension." END NOTE.)


10. (SBU) Ulyanov asserted it was "strange" that despite the
presidential address of 1991, the U.S. now would say that
Russia's actions are not provided for by international law.
Ulyanov asserted that this was "not a normal dialogue" and
chided the U.S. for not having provided an "appropriate legal
argument." Ulyanov said that
a federal law in Russia now governs the "moratorium" on CFE.

Russia Suggests Return to Implementation, If...
- - - - - - - - - - - - - - - - - - - - - - - -


11. (SBU) Lastly, Ulyanov attempted to clarify what he meant
earlier by "play acting." Ulyanov said that what bothered
him most was that we already know ahead of time what
delegates are going to say in the JCG and what Russia's
attitude will be toward such statements. Ulyanov stressed
that Russia would return to full implementation of the
Treaty, but only if we could "lift it out of its present
state of crisis." Ulyanov stated that no bilateral
negotiations were being conducted and nothing substantive was
being discussed at the JCG. He criticized the "passive
attitude of NATO," and said the last time Russia-NATO Council
took up the issue of CFE was back in February. He reminded
delegates that Russia's position is "open." He hoped that
others would be prepared to "act constructively." He said,
"once that takes place, there will be inspections,
information exchanges, and the Treaty will be complied with
fully."

Draft Decision on the Duration of the Present Session
- - - - - - - - - - - - - - - - - - - - - - - - - - -


12. (SBU) Under any other business, the Chair (Romania)
announced that a draft decision on the duration of the
present session (JCG.DD/3/08) had been tabled. The draft
decision notes that the last plenary meeting of the present

USOSCE 00000278 003 OF 003


JCG session will take place on December 16. The "work" of
the next JCG session will begin on January 12, but the first
plenary meeting would be convened on January 20. Greece, the
next chair of the Permanent Council, confirmed that the first
PC meeting of the next session will take place on January 15.
The draft decision will remain under consideration and will
probably be approved at JCG on November 25.

No JCG at Helsinki
- - - - - - - - - -


13. (C) Russia (Ulyanov) privately and separately told the
Finnish (Kangaste) and U.S. delegations (Neighbour) that
Russia did not intend to call for a JCG at Helsinki. There
would be "no purpose" stated Ulyanov.

Next Meeting
- - - - - - -


14. (U) The next JCG Plenary will be on November 25 under
the Chairmanship of Russia. The next JCG-T will be on
November 24, chaired by The Netherlands.

Action Request: Legal Arguments Against "Suspension"
-------------- --------------


15. (C) Comment: USDel still lacks instructions/clearance on
legal arguments it can use to counter Russia's legal defense
of "suspension" (details reftel),so USDel has not been able
to go beyond general assertions in response. Specifics are
needed. While USDel has not promised the JCG it would
provide specific legal counterarguments, the U.S. does have a
very strong and defensible legal position. Fortunately,
there still is a good opportunity prior to the OSCE Helsinki
Ministerial on 4-5 December to refute Russia's bogus
contentions: the JCG on 25 November. If the U.S. uses that
meeting to counter Russia's arguments with legal specifics,
Allies would very much welcome the intellectual leadership,
the USG would look good, and Russia would be back in the box
it has put itself on this issue. We owe it to our Allies and
to ourselves to respond and thereby knock Russia off this
high horse. Indeed, Allies from Norway to France have urged
us to do just that. USDel observes that the Secretary is
expected to attend the Helsinki ministerial. End comments.


16. (C) Action request: A robust, detailed statement on this
question to deliver on 25 November, which can also be
inserted into the JCG journal of the day, that answers
Russia's contentions of 14 October and also goes on the
offensive with specific legal arguments. If received a
couple of days in advance, USDel probably can also gin up
some supporting statements from Allies. When Russia raised
these arguments on 14 October, the U.S. enjoyed the luxury of
time. Timeliness now is important. USDel acknowledges the
short fuse and appreciates Washington guidance. End action
request.
FINLEY