START FOLLOW-ON NEGOTIATIONS, GENEVA

S E C R E T GENEVA 001104 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 TREATY STRUCTURE AND PROVISIONAL APPLICATION, NOVEMBER 25, 2009 Classified By: A/S Rose E. Gottemoeller, United States START Negotiator. Reasons: 1.4(b) and (d). ¶1. (U) This is SFO-GVA-VII-053. ¶2. (U) Meeting Date: November 25, 2009 Time: 10:30 a.m. - 12:15 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 Mr. Lobach and Ms. Kotkova to finalize protocol structure and to discuss provisional application. The sides agreed, subject to conforming the texts into the two languages, that the first level would be called "part," followed by "section" and then by numbered paragraphs. On provisional application, Lobach argued that some of the provisions on inspections and notifications would be impossible, in practice, to be provisionally applied since the initial Memorandum of Understanding (MOU) data would not be provided until a period of time after signature. End Summary. ¶4. (S) SUBJECT SUMMARY: Discussion of Protocol Structure; and Discussion of Provisional Application. -------------- DISCUSSION OF PROTOCOL STRUCTURE -------------- ¶5. (S) Brown and Dean discussed protocol structure with Russian lawyers Lobach and Kotkova. Dean walked through the U.S.-proposed protocol structure, providing examples of what would fit into the different parts of the protocol. Lobach and Kotkova continued to argue that, in Russian domestic legislation, the word for "part" ("chast") was used to indicate a subcomponent of a section, rather than the other way around, as in the U.S.-proposed structure. Brown noted that the word "part" was used in the INF Memorandum of Agreement and in the Chemical Weapons Convention in the same way as in the U.S.-proposed structure, and urged the Russian lawyers to check the Russian-language texts of those agreements, explaining that the precedents set within the field of arms control agreement should be sufficient to allow this hierarchy to be used in the protocol. Kotkova suggested that perhaps the word "glava," literally "chapter," could be used in the Russian text as a functional equivalent to "part" in this context. The lawyers agreed that this might be a way to resolve this issue, subject to conforming, and that the U.S.-proposed "part" was acceptable for the English language text. ¶6. (S) Kotkova asked whether, in the U.S.-proposed structure, the Russian-proposed section on agreed statements, joint statements, unilateral statements, and other associated documents could be added as another part, as an integral part of the protocol and subject to ratification. Brown noted that agreed statements were considered to be integral parts of the treaty under START, and that, while there had been no agreed statements proposed yet for the new treaty, it would be logical to have such a part in mind if such statements were to be agreed. On the other hand, other statements, such as unilateral statements, would be handled as they had been handled in START, as associated documents transmitted to the Senate for information. Dean explained the separation of powers implications of transmitting to the Senate for ratification those instruments that did not require advice and consent to ratification, and Lobach indicated that he understood that point and would continue to consider the U.S. arguments. Brown and Dean assured the Russian lawyers that such instruments would be provided as part of the transmittal package in any event, showing Lobach the set of documents that were part of the START package. Kotkova requested that the U.S. lawyers refer to the CFE transmittal package that she characterized as having dealt with such statements in a different way; the U.S. lawyers indicated that they would do so. -------------- DISCUSSION OF PROVISIONAL APPLICATION -------------- ¶7. (S) Lobach stated that he had checked with some of his experts and did not believe that it would be possible to provisionally apply, as of signature, some of the provisions dealing with inspections and notifications, explaining as an example that it appeared that MOU data would not be provided until at least 45 days after signature, thereby making it impossible, in practice, to accomplish the purpose of the inspection. Brown explained that some of the notifications dealt with one-time events, like transits, that did not rely exclusively on a completed MOU database, and thus did not agree with Lobach's conclusion. Brown also noted that the U.S. working group chairmen were being encouraged to identify those portions of their respective documents that should be provisionally applied, and he urged the Russian lawyers to do the same. Lobach agreed that this was important to do. ¶8. (S) Lobach commented that he was still not clear what could be provisionally applied under Russian law, particularly given the fact that the United States had already noted that it would not be able to provisionally apply reductions and limitations, certain notifications involving classified information, and privileges and immunities. When pressed, Lobach said that provisional application would have to be reciprocal, and would ultimately be a political decision on the part of the Government. ¶9. (U) Documents exchanged: None. ¶10. (U) Gottemoeller sends. GRIFFITHS