Identifier
Created
Classification
Origin
09GENEVA840
2009-10-07 12:47:00
SECRET
Mission Geneva
Cable title:  

START FOLLOW-ON NEGOTIATIONS, GENEVA (SFO-GVA-V):

Tags:  KACT MARR PARM PREL RS US START 
pdf how-to read a cable
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RHEHNSC/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE
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INFO RUEHTA/AMEMBASSY ASTANA PRIORITY 2075
RUEHKV/AMEMBASSY KYIV PRIORITY 1076
RUEHMO/AMEMBASSY MOSCOW PRIORITY 6273
S E C R E T GENEVA 000840 

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: 09/21/2019
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA (SFO-GVA-V):
(U) FOURTH MEETING OF THE INSPECTION PROTOCOL WORKING
GROUP, SEPTEMBER 28, 2009

REF: GENEVA 00831 (SFO-GVA-V-039)

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

S E C R E T GENEVA 000840

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: 09/21/2019
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA (SFO-GVA-V):
(U) FOURTH MEETING OF THE INSPECTION PROTOCOL WORKING
GROUP, SEPTEMBER 28, 2009

REF: GENEVA 00831 (SFO-GVA-V-039)

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


1. (U) This is SFO-GVA-V-025.


2. (U) Meeting Date: September 28, 2009
Time: 3:00 p.m. to 5:55 p.m.
Place: Russian Mission, Geneva

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


3. (S) The fourth meeting of the Inspection Protocol Working
Group (IPWG) focused on discussion of the U.S.- and
Russian-proposed joint draft text (JDT) of Section II of the
Inspection Protocol (IP) regarding inspector and air crew
privileges and immunities. The Russian delegation presented
its concept of "inspections" and "inspection-visits" as well
as a three-level approach to documenting the treaty
provisions and implementation specifics.


4. (S) The U.S. side said it was encouraging to hear the
Russian delegation express recognition of the need for
specifying three levels of detail in describing and
implementing the inspection process required for
verification. The U.S. side said questions remain regarding
the potential role of the Bilateral Consultative Commission
(BCC) in developing the third level annex, the timing of the
conclusion of the annex, and how the annex will fit with the
rest of the treaty package that will be subject to
ratification.

--------------
LEGAL DEBATES
--------------


5. (S) At the fourth meeting of the IPWG, Col Ilin
introduced the topic of inspector privileges and immunities
and, as agreed in the previous meeting, invited the legal
advisors from the two delegations to discuss the JDT of
Section II of the IP addressing these issues. Ms. Kotkova
outlined the areas of the text that she understood were in

question--the grounds for objecting to the inclusion of an
inspector on the START Inspector List, the inviolability of
office premises, and the diplomatic immunities accorded to
inspectors. Dr. Warner stated that he preferred to go
through the text sequentially in addressing these issues and
requested that Kotkova and Mr. Brown begin with paragraph 6
of the U.S.-proposed text for Sections I and II (Reftel).
Warner explained that the U.S.-proposed text included the
provision from START that a proposed inspector could only be
objected to if he or she were "under indictment for a
criminal offense" while the Russian text did not. He said
that the Russian delegation had provided its text on
September 27, 2009.

Begin text of official translation of the Russian-proposed
text:

Official Translation



Working Group II
As of September 27

Inspections, Visits, and Exhibitions
(Joint Text)

II. Provisions Concerning the Legal Status of Inspectors,
Monitors, and Aircrew Members


1. Inspections, ((inspection visits and))2
exhibitions ((and continuous monitoring activities)) shall be
conducted by inspectors ((and monitors))1. ((Except as
provided for in paragraph 6 of Section IV of this
Protocol,))1 inspectors ((and monitors))1 shall be
transported to the territory of the inspected Party by
inspection airplanes, commercial flights ((,and "Open Skies"
aircraft))2.


2. The list of inspectors shall not contain at any one
time more than ((200))2 ((400))1 individuals ((, and the list
of monitors shall not contain at any one time more than 300
individuals))1. The number of individuals on the list of
aircrew members shall be determined at the discretion of each
Party based on the premise that the number of aircrew members
for each inspection airplane shall not exceed ten.
Inspectors ((and monitors))1 ((and aircrew members))2 shall
be citizens of the inspecting Party.


3. Each Party shall have the right to amend its lists
of inspectors ((, monitors))1, and aircrew members no more
than once in each ((three-month))2 ((21 day))1 period ((, by
providing the other Party with a notification in accordance
with paragraph 20 of Section III of this Protocol))1. With
each change, the number of inspectors whose names are entered
in the list of inspectors shall not exceed 30 while the
number of aircrew members whose names are entered in the list
of aircrew members shall not exceed 25. The Party receiving
notification of an amendment to the list of inspectors or
aircrew members shall provide notification to the other
Party, in accordance with ((paragraph 5 of Subsection VI of
Section IV of this Annex))2, of its agreement with or
objection to the designation of each such inspector or
aircrew member.


4. The lists of inspectors and aircrew members shall
contain, for each proposed inspector and aircrew member, the
first name, middle name or patronymic, and last name; day,
month, and year of birth; place of birth (city, oblast or
state, and country); and passport number, if available.


5. No later than 25 days after the initial exchange of
lists, or no later than 30 days after receipt of a
notification of amendments to the lists of inspectors or
aircrew members, the Party receiving such lists or proposed
amendments thereto shall provide visas and, where necessary,
such other documents to each individual to whose designation
it has agreed, as may be required so that each inspector or
aircrew member may enter and remain in the territory of that
Party throughout the in country period. The inspected Party
shall ensure that such visas and appropriate documents shall
be issued for a period of at least 24 months, and the
inspecting Party shall ensure that individuals receiving such


visas and appropriate documents shall use them only for the
purpose of conducting inspections and visits in accordance
with the provisions ((of Section V of this Annex))1.


6. ((An individual on the list of inspectors may be
objected to only if that individual is under indictment for a
criminal offense on the territory of the inspected Party or
if that individual has been convicted in a criminal
prosecution or expelled by the Party reviewing the list.))1
An individual on the list of inspectors ((, monitors))1 or
aircrew members may be objected to in the future if that
individual is found unacceptable by the Party reviewing the
list. The Party making such an objection shall so notify the
other Party in accordance with ((paragraph 5 of Subsection VI
of Section IV))2 ((paragraph 21 of Section III of this
Protocol))1. Individuals who are objected to shall be
deleted from the lists.


8. ((sic - paragraph number 7 is missing - Trans.)) An
inspection team shall include no more than ((9))2 ((10))1
inspectors.


9. A team participating in ((an inspection visit,))2
shall include no more than ((7))2 ((10))1 inspectors.


10. A team participating in an exhibition shall include
no more than ten inspectors.

(( ))1 - U.S.proposed
(( ))2 - Russian proposed

End text.


6. (S) Kotkova asserted that each Party should decide for
itself which persons it would allow entry and exit rights to
its territory and that the legislative framework of both
countries did not require any explicit grounds for rejection
to be provided. Further, she noted that she had consulted
with colleagues familiar with START implementation and found
that cases of either side objecting to proposed inspectors
had not occurred frequently, but when it did, it was not
because of this paragraph.


7. (S) Brown explained that the U.S. position was based on
precedent from START, the Intermediate Nuclear Forces (INF)
Treaty, Threshold Test Ban, and the Peaceful Nuclear
Explosions Treaties. This provision was included in each of
these treaties, and they were negotiated and signed during a
time when the privileges and immunities accorded to
inspectors were unusual for the Soviet Union to grant to any
foreigner, especially an American. It was a show of trust,
and omitting it now would be a step back to a time of much
less trust between the sides. Kotkova disagreed, believing
that the change highlighted the fact that the Parties trust
each other so much that they do not need to list grounds for
rejecting a proposed individual since they can have
confidence that the right of rejection without justification
will not be abused. Ilin concluded that the two Parties were
not able to agree, but noted that it was significant that,
even though there had been objections, there had not been a
single case of rejection based on the criminal offense
provision. He also noted that times had changed and that,
since the Russian Federation is a state based on rule of law,


the specific grounds for objection would be governed by
Russian legislation. Brown asked, as a matter of legal
clarification, if the provision were to be included in the
treaty, would it not change Russian law with respect to the
matter. Kotkova responded that if Russia signed the treaty,
it entered into force, and it did provide for specific
grounds, the provisions of the international agreement would
apply.

--------------
VIENNA CONVENTION LIVES BUT WE'RE IN GENEVA
--------------


8. (S) Brown presented the U.S. rationale for retaining the
provisions that describe the specific privileges and
immunities accorded to inspection teams and air crews, in
paragraph 10 and its eight subparagraphs in the U.S.-proposed
JDT. The conditions specified in the U.S. version of the
chapeau including the key phrases "for purpose of
implementing the Treaty" and "not for their personal benefit"
have precedent not only in the START and INF treaties but
also in the multilateral Chemical Weapons Convention (CWC).
Kotkova replied that they were not included in the Russian
version because they were considered to be self-evident.
Ilin further stated that the language was excessive--these
conditions and privileges were implied in the definition of
an inspector. (Begin comment: The U.S. delegation
subsequently discovered that the Russian-proposed draft
treaty text includes this specific provision at paragraph 6
of Article XI and called this to the attention of the Russian
side at our next working group meeting. End comment.)


9. (S) A discussion then ensued around the question of the
time period during which these immunities were to apply. It
was discovered that wording in the chapeau at the end of
paragraph 10 of the U.S.-proposed draft corresponded closely
to wording at the end of paragraph 6 of the Russian
version--both saying that the rights of status apply when the
inspection team is within the territory of the other Party.
Warner stated that he would show the phrase at the end of
Paragraph 6 as agreed language.


10. (S) Warner then noted that references to monitors and
monitoring activities in several of the subparagraphs would
remain conditional for now, dependent upon the ultimate
resolution of the continuous monitoring of mobile ICBM
production issue, and turned the discussion to subparagraphs
(d) and (e). The second part of subparagraph (d) specifies
that the inviolability accorded to inspection airplanes for
transport of inspection teams does not apply to commercial
flights. Brown provided the historical background about why
this had been a concern during START negotiations and was
deemed useful.


11. (S) Brown presented the "immunity from jurisdiction"
provision in the second half of subparagraph (e) as one that
had strong precedent in INF, CWC, and the other nuclear arms
control treaties. It would allow the inspecting Party to
waive immunity if an inspector violated the law and it must
be expressed in writing. Kotkova pointed out that whether or
not the provision is in the treaty, a Party may reject
immunity from jurisdiction by rule of customary international
law. The Vienna Convention on Diplomatic Relations is


recognized by both the United States and Russia and codifies
the existing rule of international law in this area, and that
it made no difference whether it was in the new treaty or
not. Neither Russia nor the United States would dispute the
fact that States have the right to do this. Kotkova clarified
that customary practice is that the waiver must be express,
so there was no need to include that in the treaty. Warner
stated that he did not disagree with the points made but
pointed out that we had agreed in the past to make these
terms explicit. Kotkova agreed that the Russian side did not
have a proposal for covering the immunities explicitly and
would follow what was in the U.S.-proposed text, but just did
not believe it needed to be in the new treaty. It was agreed
that the language would remain bracketed.

--------------
WHERE DID THE AIRCREW GO?
--------------


12. (S) The discussion then turned to subparagraph (h) which
deals with consultations if there has been an abuse of
privileges--the U.S.-proposed JDT includes these provisions
while the Russian version does not. Brown pointed to the
precedents for this under START, INF, and CWC, stating that
it would provide for useful consultations to ensure there was
no recurrence of an abuse. Kotkova stated that it was
deleted from the Russian-proposed text because the provision
had not been used under START but in the framework of the
treaty, it could be useful. Ilin agreed to include the
provision as agreed text.


13. (S) Ilin proposed shortening and combining subparagraphs
(e) (according diplomatic immunities) and (g) (bringing
personal items with no customs required) and separating out
the second part of (e) (immunity from jurisdiction) into a
new subparagraph. Warner said the U.S. team would look at a
combination of subparagraphs (e) and (a) (diplomatic
inviolability). There was then some discussion of the ending
chapeau of paragraph 10 which includes the concepts of
according privileges and immunities for the entire time on
territory as well as non-interference in internal affairs.
It was agreed that the provisions apply to inspectors and
aircrew. Ilin agreed that the Russian delegation would work
on the chapeau and Warner agreed that the U.S. delegation
would look at combining sub-paragraphs (a) and (e).


14. (S) Warner discussed the potential use of Open Skies
aircraft as proposed in Subsection III of Section V of the
Russian-proposed Annex and as mentioned in discussion of
transporting inspectors. In principle, the U.S. has no issue
with using the Open Skies aircraft for transporting
inspection teams to the inspected country. Warner did,
however, note a potentially serious timing/synchronization
problem. Departures of START and presumably START Follow-on
(SFO) inspection teams from the territory of the inspected
Party are mandated to be no later than 24 hours after the
inspection team returns to the POE. The Open Skies Treaty
has a similar provision regarding Open Skies personnel. A
sequential SFO inspection/visit or delay in aircraft
departure could delay the departure of the inspecting Party
and thus not allow them to synch up with the departure of the
Open Skies aircraft and thus comply with the maximum 24 hour
stay limit at the POE on the way out. Ilin said they were


aware of the timing issues, but still wanted to move forward
with the use of an Open Skies aircraft option.

--------------
AN INSPECTION BY ANY OTHER NAME
--------------


15. (S) Ilin presented a handout in both Russian and
unofficial English translation, defining the terms
"inspection" and "inspection-visit." After hearing the
presentation, Warner asked about the absence of discussion of
the term "exhibition" as a third form of inspection activity.
The U.S. delegation had understood confirmation of technical
characteristics to be an exhibition activity rather than the
subject of an inspection visit. Ilin stated that exhibitions
would apply to new items. After items had been demonstrated
in an exhibition, the inspecting Party would have the right
to verify or confirm where new items were deployed. An
"inspection-visit" would be used to confirm while an
exhibition would demonstrate. This is part of the Russian
concept of a three-level approach.

Begin text of official translation of Russian Paper:

To Be Turned Over to the
U.S. Side
Paper of the Russian Side
September 28, 2009

Working Group II
Russian-Proposed Wording for
Terms

Inspection - activities of the Parties to the Treaty,
carried out in accordance with Article XI of the Treaty,
aimed at verifying that they have fulfilled the obligations
concerning reduction and limitation of deployed ICBMs,
deployed SLBMs, and deployed HBs, deployed launchers of
ICBMs, deployed launchers of SLBMs, as well as warheads on
deployed ICBMs, deployed SLBMs, and deployed HBs.

Inspections shall be conducted in accordance with the
procedures recorded in ((Section V of the Annex to the
Treaty))1((the Protocol on Inspections...))2.

Inspection visit - activities of the Parties to the
Treaty, carried out in accordance with Article XI of the
Treaty aimed at confirming:

- data on the number of non-deployed ICBMs,
non-deployed SLBMs, non-deployed HBs, non-deployed launchers
of ICBMs, and non-deployed launchers of SLBMs;

- data on technical characteristics of strategic
offensive arms, provided during an exchange of information or
demonstrated during exhibitions of new items of SOAs, or in
the course of confirming that items of SOAs have been
converted for new kinds of SOAs;

- that items of SOAs or SOA facilities have been
eliminated.

Inspection visits shall be conducted in accordance with


the procedures agreed by the Parties in the Bilateral
Consultative Commission (BCC) and recorded in BCC Agreements.

(( ))1 Proposed by the United States
(( ))2 Proposed by the Russian Federation

End text.


16. (S) Warner stated that he did not disagree with the idea
of an inspection as applying to confirming numbers of
deployed items. He preferred to describe the inspections
with an additional adjective but recognized it as a matter of
taste. He stated that the U.S. translation would be
"inspection-visit" and agreed that it would focus on
confirming data on non-deployed items. But there was
continuing confusion over how technical characteristics would
be handled. How to handle new types was clear in the
proposal but he was not aware of the continuing need to check
technical characteristics on existing systems. Additionally,
confirming an elimination seemed to fit into the category of
an inspection-visit.

-------------- ---
DETAILS MATTER BUT WHERE ARE THE TIES THAT BIND?
-------------- ---


17. (S) Ilin stated that it was important to stipulate the
procedures to be set forth in the Annex or Protocol of the
treaty and the required detail to implement the treaty
provisions. He attempted to explain the philosophy of a
three-level approach that included the treaty articles as the
first level, the Annex or Protocol as the second level, and
BCC agreements as the third level.


18. (S) Warner agreed with the description of treaty level
and protocol or annex level (perhaps termed a "Single
Collection of Protocols"). His vision of the third level,
however, was of a fairly detailed set of provisions to be
used by the BCC but developed by these delegations during
this negotiation. The yellow highlighting in the draft JDT
would become wording at this level. This third level would
be of great value, especially to inspectors and escorts, and
would frequently be used as a primary reference during
inspections to guide procedures. The U.S. prefers to
negotiate these detailed procedures during this negotiation
rather than delaying their development for the formation of
the BCC. This is possible because of the previously agreed
procedures and work of the Joint Compliance and Inspection
Commission. The United States believes that these detailed
procedures constitute an important document for use by the
BCC but not one that we could wait for the BCC to build.


19. (S) Ilin was happy with the agreement on levels and said
he was ready to discuss all details, but with the difference
that these provisions would not be a part of the treaty for
ratification--these detailed provisions would be left to the
BCC. The important provisions would be specified and
stipulated in the Protocols--the third level would enter into
force after the treaty and not be ratified. Warner stated
that, under this approach, some of the issues in the annexes
may have to move up to the protocol level because they are
relevant to ratification. For example, key aspects of the
warhead inspection may need to be specified. In START,


inspections were described in the treaty, the protocol
provided more description and how to get to the POE and base,
and the annex told how to conduct the actual inspection. For
the U.S. ratification process, we can't say "the details will
come later."


20. (S) Ilin concluded the meeting by stating that the main
point was that both sides would have to better understand
what has to go into the BCC documentation before treaty
signature. The BCC would not start from a blank sheet but
from the basis of the past agreements. He provided a copy of
a proposed JDT on Inspections, Visits, and Exhibitions in
Russian.


21. Documents exchanged:

Russia:

- Russian-Proposed Language of Terms--Inspections and
Inspections Visits, dated September 28, 2009; and

- Russian-Proposed Joint Draft Text for Inspection,
Visits, and Exhibitions (Joint Text),in Russian, dated
September 27, 2009.


22. (S) Participants:

U.S.

Dr. Warner
Ms. Bosco
Mr. Brown
Mr. Buttrick
Mr. DeNinno
Mr. Fortier
Maj Johnson
Ms. Pura
Mr. Rust
Mr. Sims
Mr. Smith
Ms. Gesse (Int)

RUSSIA

Col Ilin
Amb Antonov
Mr. Izrazov
Mr. Kostuchenko
Ms. Kotkova
Col Novikov
Gen Orlov
Mr. Vorontsov
Mr. Shevchenko
Ms. Komshilova (Int)


23. (U) Gottemoeller sends.
RICHTER