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E.O. 12958: DECL: 12/09/2019
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA
(SFO-GVA-VII): (U) LAWYERS' MEETING ON PROVISIONAL
APPLICATION, DECEMBER 2, 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-082.


2. (U) Meeting Date: December 2, 2009
Time: 11:30 a.m. - 12:00 p.m.
Place: U.S. Mission, Geneva

Participants:

U.S. RUSSIA

Mr. Highsmith Mr. Lobach
Ms. Melikbekian

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


3. (S) Mr. Highsmith met with Russian lawyers Mr. Lobach and
Ms. Melikbekian to provide a non-paper with a notional
approach to provisional application of selected verification
provisions of the treaty pending its entry-into-force (EIF).
Lobach indicated that this approach appeared to be legally
viable, but added that he would have to discuss the approach
with the Russian delegation since it would be a policy
decision whether, and to what extent, to provisionally apply
treaty provisions. End Summary.


4. (S) SUBJECT SUMMARY: Discussion of Provisional
Application.

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DISCUSSION OF PROVISIONAL APPLICATON
--------------


5. (S) Highsmith provided to Russian lawyers Lobach and
Melikbekian the non-paper at paragraph 8 on a notional
approach to provisional application of selected treaty
provisions pending the treaty's EIF He explained that this
approach had three elemnts: a Protocol provision specifying
the articls to be provisionally applied; a new paragraph for
the Russian-proposed treaty Article IX (on voluntry
trnsparency measures) that would allow each arty to request
up to five transparency visits per year; and a politicalcommitment by the two sides to consent to such reqests for
transparency visits prior to EIF of thetreaty. He further
explained that the new treat paragraph on transparency
visits would still apply after EIF of the treaty, but would
not at any ime impose an obligation to accede to requests
for such visits.


6. (S) Lobach replied that this approach appeared to address
the Russian inability to include substantive language on
transparency visits in the provisional application provision
itself (which was based on the Russian view that such
language created "interim measures" as opposed to provisional
application). He noted that the U.S. side had not included
in the list of articles to be provisionally applied the new
paragraph of Article IX regarding transparency visits
(Highsmith acknowledged the oversight) and also indicated
that the phrase "intention to consent" might have to be


softened. He indicated that this approach, in general, did
not present legal problems, but would have to be considered
as a policy matter.


7. (S) In closing, Lobach asked whether this non-paper
represented a U.S. proposal. Highsmith responded that the
U.S. side was proposing provisional application in principle,
including a mechanism for transparency visits during the
period of provisional application, but that the list of
treaty articles and Protocol parts was of course notional at
this time and would require careful consideration as the
relevant articles and parts are negotiated.


8. (S) Begin text:

U.S. Non Paper
December 2, 2009

- PROTOCOL TO THE TREATY

- PART EIGHT - PROVISIONAL APPLICATION


1. The Parties agree to apply the following provisions of
the Treaty and this Protocol provisionally from the date of
signature of the Treaty pending the entry into force of the
Treaty.

(a) Treaty Articles
(i) paragraphs of Article VIII (Database and
notifications)
(ii) paragraphs of Article(IX)1 (X)2
(noninterference with NTM)
(iii) paragraphs of Article (X)1 (telemetry)
(iv) Article (XIII)1 (XII)2 (BCC)
(v) paragraph 2 of Article (XVI)1 (XIV)2 (Viability
and effectiveness changes).
(b) Protocol
(i) Part One (Terms and Their Definitions)
(ii) The following portions of Part Two (Database):
(iii) The following portions of Part Four
(Notifications):
(iv) Part Six (Bilateral Consultative Commission)
(v)The following portions of Part Seven (Telemetry)
(vi) The following portions of Part Nine (General
Provisions)

- TREATY ARTICLE IX


1. ((In order to ensure the viability and effectiveness of
this Treaty, and to enhance confidence, openness, and
predictability concerning the reduction and limitation of
strategic offensive arms, each Party shall, on a voluntary
basis, in those cases where it believes ambiguous situations
might arise, take measures, including providing information
in advance, inter alia through diplomatic channels, on
activities being conducted with respect to strategic
offensive arms, which are associated with their deployment or
increasing readiness, so as to preclude the possibility of
misinterpretation of its actions by the other Party.))
((Proposed by Russian Federation))


2. ((Each Party shall have the right to request to conduct
up to a total of five (5) visits every year at ICBM bases,


submarine bases, and air bases for the purpose of promoting
transparency regarding the ICBMs, SLBMs, mobile launchers of
ICBMs, or heavy bombers located at such facilities,
hereinafter referred to as transparency visits. The
procedures for conducting such transparency visits shall be
subject to agreement by the Parties.)) ((Proposed by United
States))

DRAFT POLITICAL COMMITMENT

((To be executed at signature of the Treaty, format to be
determined (e.g., joint statement, exchange of notes))
Mindful of the importance of promoting transparency pending
entry into force of the Treaty Between the United States of
America and the Russian Federation on Measures for the
Further Reduction and Limitation of Strategic Offensive Arms
(hereinafter "the Treaty"),the United States of America and
the Russian Federation express their intention to consent to
requests to conduct transparency visits in accordance with
Article IX, paragraph 2, of the Treaty prior to entry into
force of the Treaty and to facilitate the conduct of such
transparency visits. Further, the United States of America
and the Russian Federation express their intention that the
following procedures should apply to such transparency visits:


1. The visiting team would consist of no more than eight
persons to be determined through consultations between the
requesting State and the hosting State, with reference as
appropriate to the list of inspectors under this Treaty or to
the list of inspectors under the Treaty between the United
States of America and the Union of Soviet Socialist Republics
on the Reduction and Limitation of Strategic Offensive Arms,
signed at Moscow on July 31, 1991 ("START"),prior to its
expiration.


2. The names of these persons would be provided to the
hosting State no less than ten days in advance of their
arrival at the point of entry into the hosting State.


3. The hosting State would provide visas and, where
necessary, such other documents as may be required to ensure
that these persons may enter and remain in its territory
throughout the in-country period.


4. The hosting State would treat with due respect these
persons while in its territory in connection with the conduct
of transparency visits and would take appropriate steps to
prevent any attack on the person, freedom, and dignity of
these persons.

Other procedures regarding duration, equipment, and logistics
may be determined through consultations between the
requesting State and the hosting State. End Text.


9. (U) Documents provided: As contained in Paragraph 8.


10. (U) Gottemoeller sends.
GRIFFITHS