START FOLLOW-ON NEGOTIATIONS, GENEVA

S E C R E T GENEVA 001103 SIPDIS DEPT FOR T, VCI AND EUR/PRA DOE FOR NNSA/NA-24 CIA FOR WINPAC JCS FOR J5/DDGSA SECDEF FOR OSD(P)/STRATCAP NAVY FOR CNO-N5JA AND DIRSSP AIRFORCE FOR HQ USAF/ASX AND ASXP DTRA FOR OP-OS OP-OSA AND DIRECTOR NSC FOR LOOK DIA FOR LEA E.O. 12958: DECL: 12/01/2019 TAGS: KACT MARR PARM PREL RS US START SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA (SFO-GVA-VII): (U) LAWYERS' MEETING ON RUSSIAN VIEWS CONCERNING PROVISIONAL APPLICATION, NOVEMBER 23, 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-046. ¶2. (U) Meeting Date: November 23, 2009 Time: 4:30 p.m. - 5:30 p.m. Place: U.S. Mission, Geneva Participants: U.S.: Russia Mr. Brown Mr. Lobach Mr. Dean Ms. Kotkova -------------- SUMMARY -------------- ¶3. (S) Mr. Brown and Mr. Dean met with Russian lawyers Lobach and Kotkova to elicit Russian views on provisional application of portions of the START Follow-on treaty. Lobach indicated that it was not yet clear to him whether the annexes would be considered to be integral parts of the treaty/protocol, but acknowledged that, whatever decision was reached, it would have to be the same for both sides. The lawyers also discussed methods to provisionally apply annexes that would not be signed and that would not even be concluded until after signature of the treaty and protocol. Lobach stated that the portions to be provisionally applied in the treaty or the protocol could be specified in the treaty itself or in its protocol, as a separate article or section. With respect to whether interim provisions (that would not enter into force along with the rest of the treaty) could be included as part of a provisional application section, Lobach indicated that it was possible from a legal point of view but he cautioned that such provisions must have sufficient detail to allow them to be carried out effectively. ¶4. (S) Lobach stated that he believed that the official Russian response to the U.S.-proposed bridging agreement (Reftel) would be provided through diplomatic channels. However, he said that, in discussions with his experts, what the United States had proposed "would not work," citing lack of specific procedures and less than full privileges and immunities for inspectors. End Summary. ¶5. (S) SUBJECT SUMMARY: Discussion of Provisional Application. -------------- DISCUSSION OF PROVISIONAL APPLICATION -------------- ¶6. (S) Brown and Dean met with Russian lawyers Lobach and Kotkova to elicit Russian views on provisional application and whether certain portions of the START Follow-on Treaty could be provisionally applied. The lawyers began the meeting by exchanging views on the likely structure of the treaty documents, ultimately agreeing that it would be a treaty, a protocol, and a number of annexes. Kotkova asked whether the annexes would be signed and how agreement on the annexes would be recorded if not signed. Dean noted that an appropriate method could be an exchange of notes, as signature of the annexes did not appear to be envisioned at this time. Lobach asked whether the annexes would be considered to be integral parts of the treaty/protocol. Dean responded that the U.S. Senate would expect to receive the annexes along with the treaty and protocol for advice and consent to ratification, and that the U.S. view was that they would be integral parts. Lobach acknowledged that it would have to be the same for both sides since there would have to be a reference to what was considered to be integral parts. ¶7. (S) The lawyers also discussed methods to provisionally apply the annexes, which would not be concluded until after signature of the treaty and protocol, ultimately agreeing that provisional application could be achieved through an exchange of notes or be effected through a provision in the body of the annexes themselves. ¶8. (S) Lobach stated that the portions of the treaty or the protocol to be provisionally applied could be specified in those documents, as a separate article or section. The U.S. lawyers requested the Russian lawyers' reaction to the idea that the provisional application section could also include "interim" provisions that would not enter-into-force (EIF) along with the rest of the treaty but could be used following signature for a specified period but would not continue after EIF. As an example, such interim provisions could include the type of "visits" that were contained in the U.S. bridging proposal (Reftel). After some clarification by the U.S. lawyers, Lobach indicated that, while it was possible under Russian law to have such interim provisions brought into effect via provisional application, he cautioned that such provisions must have sufficient detail to be carried out; otherwise, they were unrealistic. He did not understand how inspections could be conducted without the relevant annexes, which would not be agreed until several months after signature. ¶9. (S) The U.S. lawyers noted that it was important to encourage the working group chairmen to start identifying provisions that would be subject to provisional application and to identify which could not, explaining that certain types of provisions would not be possible to provisionally apply under U.S. law. Lobach responded that he had also started to think about what could not be provisionally applied, but he agreed that it was necessary to get the working group chairmen to identify those that were desired for provisional application. ¶10. (S) Lobach stated that he believed that the official Russian response to the U.S.-proposed bridging agreement (Reftel) was going to be provided through diplomatic channels and did not elaborate further, other than to say that in discussions with his experts, what the United States had proposed "would not work," citing lack of specific procedures and less than full privileges and immunities for inspectors. ¶11. (U) Documents exchanged: None. ¶12. (U) Gottemoeller sends. GRIFFITHS