Identifier
Created
Classification
Origin
08USOSCE298
2008-12-12 16:38:00
CONFIDENTIAL
Mission USOSCE
Cable title:  

CFE/JCG DECEMBER 9 PLENARY: LEGAL ANALYSIS

Tags:  KCFE OSCE PARM PREL RS 
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VZCZCXYZ0002
OO RUEHWEB

DE RUEHVEN #0298/01 3471638
ZNY CCCCC ZZH
O 121638Z DEC 08
FM USMISSION USOSCE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6087
INFO RUCNCFE/CONVENTIONAL ARMED FORCES IN EUROPE PRIORITY
RUEHNO/USMISSION USNATO PRIORITY 1689
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
RUEAHQA/HQ USAF WASHINGTON DC//XONP// PRIORITY
RUEADWD/DA WASHINGTON DC PRIORITY
RUEASWA/DTRA ALEX WASHINGTON DC//OSAE PRIORITY
C O N F I D E N T I A L USOSCE 000298 

SIPDIS

STATE FOR VCI/CCA, EUR/RPM
NSC FOR HAYES
JCS FOR J5/COL NORWOOD
OSD FOR ISA (PERENYI)

E.O. 12958: DECL: 05/20/2018
TAGS: KCFE OSCE PARM PREL RS
SUBJECT: CFE/JCG DECEMBER 9 PLENARY: LEGAL ANALYSIS

REFUTES RUSSIAN CLAIMS; OLD RF PROPOSAL RECYCLED

REF: STATE 128974

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 USOSCE 000298

SIPDIS

STATE FOR VCI/CCA, EUR/RPM
NSC FOR HAYES
JCS FOR J5/COL NORWOOD
OSD FOR ISA (PERENYI)

E.O. 12958: DECL: 05/20/2018
TAGS: KCFE OSCE PARM PREL RS
SUBJECT: CFE/JCG DECEMBER 9 PLENARY: LEGAL ANALYSIS

REFUTES RUSSIAN CLAIMS; OLD RF PROPOSAL RECYCLED

REF: STATE 128974

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


1. (C) Summary: At the December 9 Joint Consultative Group
(JCG) plenary, the U.S. provided a legal analysis refuting
Russia,s repeated assertions that it has a legal basis for
its "suspension" of the CFE Treaty. This was important to
clear the air on this issue after repeated Russian challenges
to the Allies, and U.S. in particular. Russia also recycled
an earlier appeal for further discussions on how the JCG can
contribute to a creative solution on the CFE impasse. He
quoted from Russian Foreign Minister Lavrov,s comments at
the Helsinki OSCE Ministerial that it is not just up to
Moscow and Washington to salvage CFE - all States Parties
should be involved, and the JCG is the best place to
elaborate a collective viewpoint. In particular, the JCG
should work on details of the parallel package to support the
Fried-Antonov channel. France and the UK made strong remarks
reminding Russia that it is responsible for the current
situation, and events at the Ministerial did not help put the
Treaty back on track. France mentioned that the high-level
consultations will resume on December 17 between A/S Fried
and Antanov, and does not want the JCG to risk undermining
that process. Germany reiterated Foreign Minister
Steinmeier,s proposal at Helsinki to host a high-level CFE
meeting next summer but provided no new details. End Summary.

No Legal Basis for Suspension
--------------


2. (SBU) The U.S. (Neighbour) provided a statement on the
U.S. legal analysis of Russia,s claim that there is a legal
basis for its suspension of CFE Treaty obligations under the
CFE Treaty or customary international law (reftel).
Neighbour also attached the Department,s legal analysis in
reply to Russia,s assertions to the JCG journal. The
Russian response was gracious. Russia (Ulyanov) thanked the
U.S. for providing the analysis undertook to forward it to
Moscow for detailed review. He said it offered the start of

a real dialogue. He clarified that Russia has never said the
Vienna Convention is a basis for the moratorium but is rather
the greater/lesser principle implied. He also cautioned that
those that continue to question Russia,s right to suspend
from the Treaty may force its actual withdrawal instead.


3. (SBU) Romania (Mihai) recalled its Note Verbale of 11
December 2007 regarding Russia,s legal claim for suspension,
and it continues to stand by the position as distributed by
the Depositary to all States Parties. The Czech Republic
(Reinohlova) also recalled its Note Verbale number 330 of May
19, 2008, that states its position objecting to Russia,s
suspension. The Treaty does not allow it, the Czech position
remains the unchanged, and Russia,s position lacks legal
justification. UK (Hartnell) also recalled that its legal
position had been recorded in a Note Verbale.


4. (C) Germany (Richter) soft-peddled by saying discussion of
legal interpretations do not really help to move forward
toward a solution. Rather, we should focus our dialogue on
how to overcome the impasse. A political approach is needed
versus a legal debate. Before the meeting, however, he told
us that Germany fully agreed with the need for the U.S. to
reply to Russia,s repeated challenges to the Allies, and
U.S. in particular, on this issue.

JCG Should Be Involved
--------------


5. (SBU) Russian Ambassador Ulyanov made a lengthy statement
aimed at prompting further discussion on how the JCG could
contribute to a constructive solution to the CFE impasse.
The JCG is not just a supplement to U.S.-Russian bilateral
relations, but is important for reaching mutual effective
solutions. The JCG,s multilateral format allows all parties

to participate. As FonMin Lavrov said in Helsinki, salvaging
CFE is not just up to Moscow and Washington - we are not in a
cold war anymore. We have equality and democracy in
international affairs - this subject is not just for two
capitals alone.

6. (SBU) Ulyanov noted that six days ago, the NAC Communique
was agreed, and paragraph 34 ends with important words, "We
urge Russia to work cooperatively with us and other concerned
CFE States Parties to reach agreement on the basis of the
parallel actions package so that together we can preserve the
benefits of this landmark regime." Russia couldn't have put
it better itself. Russia has been appealing to the Alliance
for such cooperation for over a year and it seems that our
positions are now starting to come together. The only place
that can happen is in the JCG. The only question is how does
NATO propose to organize the JCG's work per the NAC
statement, especially in light of Moldova and Ukrainian
alignment with the statement.


7. (SBU) Russia has three points for consideration: 1) the
parallel package could serve as the basis for JCG work. As
Minister Lavrov said, the parallel package is an outline of
what Russia has done in contrast to the amorphous NATO
promises of action. The package needs to outline the actions
NATO will take; 2) the JCG is capable and should by rights
make its own contribution. It,s hard to rely on the busy
schedules of high-level Moscow/Washington reps to discuss the
details, e.g., defining substantial combat forces; modalities
of new participants (Baltics, Slovenia, even Albania and
Croatia as pending NATO members); and provisional application
of a/CFE. 3) The package needs to be considered as a whole
- if we it tackle element by element Russia understands that
nothing is agreed until all is agreed. This would prevent
fragmentation.


8. (SBU) Ulyanov stressed that Russia,s proposals are aimed
at expediting the process. There is no hidden agenda.
Russia hopes for a constructive response. He emphasized
Russia,s proposal for a JCG effort is to support the
Fried-Antonov channel, not undercut it. Russia believes the
NAC Ministers urged the same approach. (text in Journal)

Not Until the Parallel Package is Agreed
--------------


9. (SBU) France (Simonet) replied forcefully by noting the
current situation is one of Russia,s own making by way of
its decision to suspend itself from the Treaty. Events at
the OSCE Ministerial last week did not help to put it back on
track. On December 17th the high-level talks will resume in
Geneva. Launching into a JCG discussion on the parallel
package now could risk undermining that process. He pointed
out that Russia has yet to reply to the NAC March 28
statement. As Russia knows, this statement is the basis to
move forward. Let,s not muddle the order of things. France
is awaiting the outcome of the high level discussions.


10. (SBU) The UK rep (Gare) supported the French
intervention. Comments regarding the erosion of the Treaty
could be reversed if Russia stopped its suspension. She
welcomed Russia,s desire for information exchange and urged
them to engage on the CFE Treaty exchange on December 15.


11. (SBU) Germany (Richter) recalled that the need for the
adapted Treaty has been confirmed by all. For this reason,
Foreign Minister Steinmeier announced at Helsinki plans to
invite high-ranking experts for a meeting in early summer.
Germany is convinced of the need for a new beginning in order
to stop further erosion. We need to retain CFE - it has
proved its value. We need to continue building opportunities
for a comprehensive effort in an inclusive way. The December
3 NAC statement urges Russia to do its part. Germany is glad
the high-level bilaterals will happen soon. (text in Journal)


12. (SBU) The U.S. (Neighbour) said the Russian statement
shows that it shares our desire to end the impasse. However,

he expressed concern that Russia,s proposal again is to
cherry-pick parts of the package deal and disaggregate it.
The package as discussed between Fried-Antonov does not allow
for piecemeal discussions on parts of the package. Citing
the NAC,s 28 March statement which had been affirmed as
recently as 3 December, Neighbour noted that it said that
only "upon agreement between NATO and Russia on the package"
would NATO work with Russia to develop a definition of
"substantial combat forces" or discuss conditions for
accession.

Russia,s New Chorus line
--------------


13. (SBU) Belarus (Krayushkin) welcomed Russia,s proposal
for further JCG work. Belarus ratified adapted CFE in 2000
and is waiting for others to do so. Belarus is convinced the
JCG is the right place to discuss the parallel plan.
Kazakhstan (Bekov) also supports Russia,s position to use
the JCG. Kazakhstan ratified the adapted Treaty in 2003.
The JCG has the right expertise - why waste time elsewhere?


14. (C) Armenia considers the Treaty of real value,
unfortunately it is under a cloud with no sign of recovery
and events in Helsinki were not encouraging. Not clear yet
what the impact is of having the current Treaty suspended,
and the adapted one not yet in place. Armenia is open to
discussion in the JCG if that would help, and since it does
not belong to another group (NATO),it is the only fora
available. Perhaps a two-track approach may help build
understanding - JCG and the high-level bilats. Comment:
Armenia,s statement was more measured than the cheerleading
statements of Belarus and Kazakhstan. He told us he got his
instructions to intervene the same morning of the meeting,
and that Yerevan was very specific on what he should say.
This was the first time in memory that Russia had
orchestrated a chorus line of support consisting of more than
one del speaking in support of it. End Comment.


15. (SBU) Russia (Ulyanov) regretted that France, UK, and
U.S. are not prepared to proceed in the JCG as supported by
Belarus, Kazakhstan, and Armenia. It appears the NATO states
do not take Russian concerns seriously, and are not really
prepared to take-up the cooperation called for in the NAC
December 3 statement (paragraph 34). Russia is in no hurry,
the moratorium is still in place. Russia has been waiting
since April 2007, when former President Putin invited NATO
for intense dialogue on the subject. Russia urged the U.S.
to take the offer for dialogue seriously, not merely give it
lip service. Ulyanov quoted from a Russian MFA press release
on official reactions to paragraph 34 in line with his many
previous statements. The parallel plan "needs serious
further elaboration." Russia is amazed that paragraph 34
calls on Russia to be cooperative when Russia has been urging
such cooperation itself since the Extraordinary Conference in
June 2007. NATO is the one that has been passive.
Apparently this NAC statement is open to multiple
interpretations. Russia would really like to believe that it
will hear something constructive on December 17.


16. (SBU) Germany (Richter) took issue with Russia,s claim
that NATO has been passive. Germany and France both hosted
special meetings last year in an effort to move forward. He
noted the events in Georgia this summer certainly did not
help the process. Ulyanov appreciated that Germany takes the
subject seriously, but it is not interested in the actions of
individual countries, but the Alliance as a whole. NATO has
been passive for one and a half years, the NRC has stopped
meeting, and NATO is reluctant to use the JCG, etc. There
have been only three senior bilateral meetings this year.
The days when Washington and Moscow can call all the shots
are long gone. Russia is prepared to do what is in the
December 3 NAC Communique.

OSCE Amb,s See Helsinki as Signal to Talk Sarko-Med
--------------



17. (C) Meanwhile, at the NATO Caucus on December 10, a
number of ambassadors expressed the view that the ministerial
lunch in Helsinki gave them the signal to kick off
discussions in Vienna on the way forward on European
security, including (but not limited to) the Sarkozy-Medvedev
proposals. They believe the process should be in Vienna,
acknowledging the importance for policy coordination in
Brussels at NATO. The French, however, pointedly noted the
importance of coordination in Brussels at the EU as well.
The French will be promoting early OSCE follow-up for
Sarko-Med proposals. Some delegations, particularly the
British, have joined us in saying NATO countries need to
focus on "why" first. USDel stressed the positions we took
in discussions at the NATO Ministerial, i.e. Vienna is the
place for talks, but NATO should coordinate positions in
advance.


18. (U) The next and last meeting of the JCG in the current
session will be December 16 under the chairmanship of
Slovakia.
FINLEY