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E.O. 12958: DECL: 12/02/2019
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 30, 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-048.


2. (U) Meeting Date: November 30, 2009
Time: 10:30 a.m. - 11:30 p.m.
Place: U.S. Mission, Geneva

Participants:

U.S. Russia

Mr. Highsmith Mr. Lobach
Mr. Brown Ms. Melikbekian

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SUMMARY
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3. (S) Mr. Highsmith and Mr. Brown met with Russian lawyers
Mr. Lobach and Ms. Melikbekian to discuss issues related to
provisional application. Lobach continued to raise concerns
on any approach that would attempt to provisionally apply
"interim" measures that were not intended to be ratified or
to enter-into-force (EIF). This concern arose specifically
with respect to the U.S.-proposed procedures for transparency
visits that would apply only during the period of provisional
application. The U.S. lawyers asked whether the concept
would be more consistent with Russian treaty practice if such
measures were to continue to be available following (EIF) for
transparency purposes. Lobach requested that this idea be
put on paper for his review. End Summary.


4. (S) Subject Summary: Discussion of Provisional
Application.

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DISCUSSION OF PROVISIONAL APPLICATION
--------------


5. (S) Highsmith and Brown discussed provisional application
with Russian lawyers Lobach and Melikbekian. Highsmith
commented that it might be possible to treat, under
provisional application, some of the transparency measures
that had been contained in the U.S.-proposed "bridging
arrangement" (Reftel). Lobach responded that it would be
difficult for Russia to agree to such an approach because the
measures that the United States had proposed in that
arrangement were not appropriate for provisional application
under Russian law: they would not continue after EIF of the
treaty and were more properly described as "interim"
measures. He emphasized that his President would not be able
to sign an instrument that contained "interim" measures that
would not be ratified or survive EIF of the treaty.


6. (S) Lobach admitted that, hypothetically, it might be
possible for Russia to adopt measures that included less than
full privileges and immunities for U.S. and Russian
personnel, but he noted that Russian prosecutors would not
necessarily accord any special treatment to U.S. personnel if



they were to commit any criminal acts. Highsmith asked
whether there was some degree of discretion on whether to
prosecute. Lobach answered in the affirmative, but noted
that there was some sensitivity between the branches of
government on such issues, adding that there had also been
some disagreements between Ministry of Foreign Affairs (MFA)
and customs authorities when exemptions from customs duties
were being claimed based on a provisionally-applied
agreement. Highsmith asked whether Russia could
provisionally apply full privileges and immunities. Lobach
responded that it was possible to provisionally apply full
privileges and immunities but that, in order to do so, it
would have to be on the basis of reciprocity, and he
understood that the United States was unable to provide full
privileges and immunities.


7. (S) Highsmith asked Lobach whether there were any legal
objections to the concept of identifying certain provisions
of the treaty and the protocol for provisional application;
Lobach confirmed that there were no objections as a matter of
law but that he could not speak for what specific provisions
would be proposed for such treatment. Highsmith asked
whether such a concept could be incorporated into a treaty
article; Lobach agreed that it would be possible to do so.


8. (S) Brown asked whether it would be possible to put the
concept of transparency visits -- as was contained in the
U.S.-proposed bridging arrangement -- in a treaty article,
perhaps as a transparency measure. Highsmith added that
perhaps such measures could be agreed on a case-by-case
basis, and could be linked to a political commitment that a
particular number of such transparency measures could be
undertaken during a given period of time. Lobach requested
that the U.S. lawyers work up an example of how these
measures could be framed as a treaty provision that would
continue after EIF and thus could be subject to provisional
application.


9. (U) Documents exchanged: None.


10. (U) Gottemoeller sends.
GRIFFITHS