START FOLLOW-ON NEGOTIATIONS, GENEVA

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E.O. 12958: DECL: 11/17/2019
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA
(SFO-GVA-VII): (U) LAWYERS' MEETING ON U.S.-PROPOSED
AGREEMENT ON INTERIM MEASURES, NOVEMBER 12, 2009

REF: STATE 115348

Classified By: A/S Rose E. Gottemoeller, United States
START Negotiator. Reasons: 1.4(b) and (d).


1. (U) This is SFO-GVA-VII-020.


2. (U) Meeting Date: November 12, 2009
Time: 4:15 - 5:15 P.M.
Place: Russian Mission, Geneva
Participants:

U.S. RUSSIA

Mr. Brown Mr. Lobach
Mr. Dean

--------------
SUMMARY
--------------


3. (S) Mr. Brown and Mr. Dean met with newly arrived Deputy
Chief of the Ministry of Foreign Affairs (MFA) Legal
Department Mr. Lobach to discuss legal issues related to the
U.S.-proposed agreement on interim measures relating to their
strategic offensive arms (SOA) (REFTEL). Lobach had not yet
examined the proposal and noted the primacy of political
considerations in any official Russian reaction. He raised
the alternative of provisional application of the new treaty
rather than a separate agreement, but did not rule out the
legal availability of the latter option. He cited Russian
law concerning the need to obtain Duma approval for certain
international agreements, including those related to defense,
disarmament, and international control (verification) of
armaments. With respect to provisional application, he noted
that, as a purely legal matter, it would be possible for
Russia to assume binding obligations, even with respect to
matters for which the Duma had approval authority, during the
initial period following signature.


4. (U) Subject Summary: Initial Thoughts on U.S.-Proposed
Agreement; and, Potential Political Downside of Separate
Agreement.

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INITIAL THOUGHTS ON
U.S.-PROPOSED AGREEMENT
--------------


5. (S) Brown and Dean met with Lobach, who had arrived from
Moscow earlier in the day to join the Russian delegation for
the duration of the round. He indicated that he had not yet
had a chance to read the U.S.-proposed agreement, but he
hoped to have a chance, on the following day, to be prepared
to discuss with the U.S. lawyers, on a preliminary basis, his
reaction to the text in his capacity as a legal advisor,
without commenting on the political aspects of the issue,
which he stressed were the most important.


6. (S) Lobach asked why the United States had proposed the
separate agreement and had not instead relied on provisional
application of the new treaty. Brown and Dean explained that
the agreement was less extensive and detailed and would use


many practices already time tested in START, such as
notifications, so its implementation in the short period
proposed should be easier than would be new provisions from
the treaty now under negotiation. This would be just a gap
filler and should be easier to agree upon.


7. (S) Lobach responded that many of the elements of the
agreement, from a quick perusal, seemed to be the type of
provisions that would require Duma approval, noting in
particular the fourth subparagraph of paragraph 1 of Article
15 of the Russian Federal Law on International
Agreements--which the U.S. lawyers had brought with
them--that specifically required ratification of agreements
concerning the defense capabilities of the Russian
Federation, disarmament and international control
(verification) of armaments. Lobach also commented that he
was familiar with U.S. international legal practice--given
his tour at the Russian Mission to the United Nations in New
York--and the use of executive agreements vice treaties,
explaining that there was not really an equivalent practice
in Russia if it involved a matter that required Duma approval
under that law. He did not rule out, however, an agreement
similar to what the United States called an Executive
Agreement if the subject matter did not deal with issues that
were within the purview of the Duma.


8. (S) Lobach explained that provisional application of the
new treaty would be possible under Russian law for a period
of at least six months, prior to submitting the treaty to the
Duma, and it would be considered to be legally binding during
that period, even if the matters were subject to eventual
Duma ratification.


9. (S) Lobach remarked that there could be a problem with
the formulation, "insofar as permissible under its domestic
laws," because of the uncertainty of a Party's compliance
with that provision, since it did not appear that the
agreement would require a change in domestic law, thus
rendering that obligation without legal effect unless the
Party decided to seek domestic legislation.


10. (S) On the provision relating to a (lower) level of
diplomatic protection of inspectors on the territory of the
other Party, Lobach commented that the formulation contained
in the U.S.-proposed text might be a problem because it did
not really provide privileges and immunities. Brown and Dean
noted that there were precedents in bilateral agreements,
including the Executive Agreement signed at the end of START
concerning early exhibitions, which used the identical
language and was successfully carried out. Dean said that he
would provide a list of several other agreements where
similar formulations had been used with respect to personnel
of the Parties on each other's territory.

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POTENTIAL POLITICAL DOWNSIDE
OF SEPARATE AGREEMENT
--------------


11. (S) Lobach commented that this sort of separate
agreement could become a political trap, to be used by those
who did not want to conclude the new treaty and who might
argue that, once signed, the separate agreement would be


sufficient to cover the strategic relationship between the
two sides.


12. (S) Documents exchanged.

- U.S.:

-- Copy of U.S.-proposed "Agreement on Interim Measures
Relating to their Strategic Offensive Arms."


13. (U) Gottemoeller sends.
GRIFFITHS