CHEMICAL WEAPONS CONVENTION (CWC): HOST COUNTRY

UNCLAS STATE 045914

SENSITIVE

C O R R E C T E D C O P Y (ADDED PARAGRAPH MARKING 1,3 AND 4)

SIPDIS
THE HAGUE FOR CWC DEL

E.O. 12958: N/A
TAGS: CA KTIA PARM PREL CWC
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC): HOST COUNTRY
AGREEMENT WITH CANADA ON CHALLENGE INSPECTIONS (SBU)

REF: A. STATE 112672 08

B. OTTAWA 000037 09


1. (SBU) Action Request in Paragraph 9.

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OBJECTIVES
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2. (SBU) Department requests Embassy to pursue the following
objectives:

-- Work with the Government of Canada to negotiate a Host
Country Agreement (HCA) on the conduct of Chemical Weapons
Convention (CWC) challenge inspections.


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REPORTING DEADLINE
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3. (SBU) Embassy should report results of discussions with
Canadian officials by cable to ISN/CB Eugene Klimson NLT MAY
15, 2009.
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POINT OF CONTACT
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4. (SBU) Please contact ISN/CB Eugene Klimson at (202) 647-5165 or
via email for any further background needed to meet our
objectives.

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BACKGROUND
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5. (SBU) The United States and Canada have been negotiating
a Host Country Agreement (HCA) on the conduct of Chemical
Weapons Convention (CWC) challenge inspections since 2005.
In November 2008, the United States delivered a Draft
Memorandum of Understanding (MOU) to Canada (Ref A) and held
subsequent negotiations in December 3, 2008 during the CWC
Conference of States Parties in The Hague. At the end of
negotiations, three brackets remained outstanding. On
January 13, 2009 Canada provided new text for U.S.
consideration based on the December discussions (Ref B).


6. (SBU) Washington has reviewed Canada's amendments and can
accept the proposed changes with two administrative changes
to the Annex Title. Canada had proposed: &EXCHANGE OF
NOTES BETWEEN THE GOVERNMENTS OF THE UNITED STATES OF AMERICA
AND CANADA ON PROCEDURES GOVERNING THE CONDUCT OF CHALLENGE
INSPECTIONS UNDER THE CWC.8 We accept that title, but would
replace the word ¬es8 with the word &letters8 and
replace the initials &CWC8 with the words &CHEMICAL
WEAPONS CONVENTION (CWC).8 which is to fully write out
&CWC8. The United States also accepts Canada's
understanding that in participating on the inspection host
team, the other Participant would work communications through
the Inspected State Party Head of Delegation based on the
legislative requirements in Canada. This would not, however,
affect normal U.S. communications with the Organization for
the Prohibition of Chemical Weapons (OPCW) from Washington or
its Permanent Mission in The Hague.


7. (SBU) Washington also seeks a substantive change, which
is to delete paragraph III.D on managed access. The United
States and Canada have been unable to agree on terminology
concerning the implementation of managed access by the other
State Party. Therefore, the United States is recommending
dropping the text addressing managed access and may address
it at a later date.


8. (SBU) As a courtesy, the United States reprinted the
draft final text at the end of the cable for final review by
the Canadian Government. Upon their concurrence, the U.S.
National Authority is ready to sign the letter and will
forward the final signed copy upon concurrence of the
Canadian Government.

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ACTION REQUEST
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9. (SBU) Drawing on the background and talking points,
Embassy Ottawa is requested to deliver the talking points in
paragraph 9 and the draft HCA text in paragraph 10 to the
appropriate Canadian officials and report the results of
these discussions to Washington.

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TALKING POINTS
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10. (FOUO) Talking points for delivery:

- The United States appreciates Canada's continued
cooperation in concluding a Host Country Agreement (HCA) in
the event of a Chemical Weapons Convention (CWC) challenge
inspection involving both U.S. and Canadian assets.

- On January 13, 2009, your government provided us with a few
amendments to the U.S. draft HCA proposal discussed at the
2008 CWC Conference of States Parties in The Hague.

- The United States is pleased to inform you that we can
accept the final changes and we are ready to exchange
diplomatic letters.

- We suggest two administrative changes to the title of the
Annex. First we propose changing the phrase &exchange of
notes8 to &exchange of letters8 and to replace the acronym
&CWC8 with &Chemical Weapons Conventions (CWC)8 since the
Annex is a separate attachment.

- We also deleted paragraph III.D. managed access.

- We also understand Canada's legislation requires that,
except for cases involving a sovereign vessel or aircraft of
another state, Canada must always be the Inspected State
Party for an inspection occurring on Canadian territory.
Therefore, when participating in an inspection, we will
respect that Canada will be the official voice for the
Inspected State Party when U.S. sovereign vessels or aircraft
are not involved.

-This would not affect normal diplomatic communications with
the OPCW through capital or permanent representation in The
Hague where U.S. interests are involved.

- We have for you a final draft as we understand your
changes, and will forward a letter from Washington upon your
final concurrence.

- We are very pleased to bring this matter to a successful
conclusion.

End of Talking Points.

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DRAFT TEXT
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11. (FOUO) Text for Delivery to Canadian Officials:

Mr. James A. Junke
National Coordinator
Canadian National Authority for the Chemical Weapons
Convention
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Canada K1A 0K6

Dear Mr. Junke

I have the honor to refer to the discussions between the
United States and Canada concerning challenge inspections
under the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction (CWC).

The United States proposes that a set of arrangements and
principles for the conduct of challenge inspections under the
Convention apply to the conduct of any challenge inspection
in the territory of one Participant in which the assets of
the other Participant may be within, or in the vicinity of,
the inspection site.

Nothing in these principles should be interpreted as altering
in any way any agreements in force between the United States
and Canada. These principles should be interpreted in a
manner that is consistent with the Convention and any
agreements entered into between either Participant and the
Organization for the Prohibition of Chemical Weapons (OPCW).

In the event there is a conflict between the provisions of
the Convention or any agreement between either Participant
and the OPCW and this arrangement, the provisions of the
Convention or such agreement with the OPCW should take
precedence.

In this regard, the United States understands that the
Canadian National Authority has informed the Director-General
of the OPCW that, in accordance with Canadian domestic
legislation, Canada will be the sole inspected State Party
for any challenge inspection on its territory except for
cases in which a sovereign vessel or aircraft of another
country is the subject of the inspection. Canada understands
that the United States does not have domestic legislation
similar to Canada's that would require that the United States
be the sole inspected State Party for any challenge
inspection on its territory.

The arrangements and principles may be amended in writing by
the United States and Canada.

If the principles and arrangements set out in the Annex below
are acceptable to the Government of Canada, I have the honor
to suggest that this letter and your reply to that effect
will place on record the understanding of the United States
and Canada in this matter that will come into effect on the
date of your reply and will remain in effect until 90 days
after the receipt of notice of termination by either Canada
or the United States.

Yours sincerely,



Robert Mikulak
National Authority for the Chemical Weapons Convention
Department of State
Washington, D.C.
USA



Annex

EXCHANGE OF LETTERS BETWEEN THE GOVERNMENTS OF THE UNITED
STATES OF AMERICA AND CANADA ON PROCEDURES GOVERNING THE
CONDUCT OF CHALLENGE INSPECTIONS UNDER THE CHEMICAL WEAPONS
CONVENTION (CWC)

For the purpose of these principles and arrangements, &Host
State Party8, denotes the State on whose territory lie
facilities or areas of another State Party to this
Convention, that are subject to inspection under the CWC.
The &non-Host Party8 is the State on whose territory a
challenge inspection is not taking place but that may have an
asset potentially affected by a challenge inspection.
&Inspected State Party8 is used in accordance with the
Verification Annex, Part I.12. The &other Participant8
denotes the Participant that is not the inspected State Party.

The United States and Canada affirm the importance of the
effective implementation of the CWC and intend to work
closely and cooperatively together in order to fulfill their
obligations concerning the conduct of a challenge inspection
under the Convention.

The United States and Canada affirm that nothing in this
Annex should be interpreted as altering in any way any
agreements in force or understandings in effect between the
United States and Canada or in a manner that is inconsistent
with the Convention, or any agreements entered into between
either Participant and the OPCW.


I. In the event that a challenge inspection takes place on
the territory of the United States or Canada, and that
inspection may affect the assets of the non-Host Party, the
United States and Canada each intend to:


A. Coordinate to ensure that their sovereign rights can be
exercised and national interests protected in meeting their
obligations under the Convention.


B. Make every effort to provide, within two hours of receipt
of a notification of a challenge inspection on its territory
or in any other place under its jurisdiction from the
Organization for the Prohibition of Chemical Weapons (OPCW),
copies of the Inspection Notification and the identity of the
Requesting State Observer to the other Participant. In
addition, the Inspected State Party intends to provide a copy
of the Inspection Mandate to the other Participant when
received from the inspectors. The points of contact for
notifications to the United States are the United States
Nuclear Risk Reduction Center (telephone 01-202-647-9166, fax
01-202-647-4892) and the U.S. Northern Command Joint
Operations Center (01-719-554-2361, fax 01-719-554-2368).
The point of contact for notification for Canada is (Canada
to provide).


C. Exercise full sovereign rights with regard to its
government sovereign vessels and aircraft. When government
sovereign vessels and aircraft are the sole object of an
inspection, the Participant owning or operating such assets
should be the Inspected State Party. If the Host State
Party, not owning these assets, is designated the Inspected
State Party, the Host State Party should advise the OPCW that
the government vessel or aircraft is solely under the
jurisdiction and control of the non-Host State Party and
that, therefore, the non-Host State Party is properly the
Inspected State Party.


D. Provide each other, as soon as possible after receipt of
initial notification, any relevant information about the
inspection as such information becomes available.


E. Upon receipt of the list of inspectors and inspection
assistants, consult with each other if any individuals on the
list raise concerns, and on the access that should be
accorded that individual.


F. Consult with each other regarding whether to accept an
observer designated by the Requesting State Party whenever
assets from both Participants may be within the inspectable
area, and on the degree of access that the requesting State
Party observer should be accorded.


G. Consult with each other concerning the handling of media
relations before, during, and after a challenge inspection.


H. Reach agreement on the release of any information
provided pursuant to these principles and arrangements to any
third party.


I. Exchange the names of approved inspectors on an annual
basis.

II. The Host State Party intends to:


A. Expedite the entry of the liaison officers, and their
equipment and material (possibly including a mobile
laboratory) from the non-host State Party into its territory,
which may include, but is not limited to, the provision of
aircraft and diplomatic clearance, and assistance with
customs.


B. Manage the conduct of the inspection when taking place on
its territory, to take into account the need of personnel
from the non-host State Party to travel from the territory of
the non-host State Party to the inspection site in order to
assist the host State Party in the expeditious conduct of the
inspection.

III. The Inspected State Party should:


A. Allow the other Participant to send representatives to
observe and advise the Inspected State Party on any matters
pertaining to the national security interest of the other
Participant at all stages of the challenge inspection,
including, but not necessarily limited to: point of entry
procedures; perimeter negotiations; inspection of OPCW
approved equipment; pre-inspection briefing; conduct of
inspection and, sampling and analysis and at all levels
(including sub-team activities).


B. Not provide access to any area, building, or facility
used by the other Participant without prior consultation with
the designated representative of the other Participant.


C. Not provide access to any citizen, equipment or vehicle
owned by the other Participant without prior consultation
with the designated representative of the other Participant
and an opportunity to prepare its asset.


D. Coordinate with the other Participant on the provision of
access or information to be given to the inspection team
concerning an asset of the other Participant.


E. Provide the other Participant, on a cost-recovery basis,
any administrative support required or requested, including
transportation, accommodation, lodgings, meals,
communications, and any necessary protective clothing or
equipment.


F. Ensure that the other Participant, if deemed necessary,
has up to 108 hours from the inspection team's arrival at the
point of entry before providing the inspection team access to
its assets inside the perimeter.


G. Provide the other Participant a copy of the Preliminary
Inspection Report and Draft Final Inspection Report as soon
as such findings are provided to the Inspected State Party by
the Inspection Team.


H. Provide the other Participant an opportunity to offer
comments within 24 hours on the Preliminary Inspection Report
hours and similarly offer comments within 48 hours on the
Draft Final Inspection Reports with respect to any parts
thereof pertaining to the national security interests of the
other Participant.


I. Consult with the other Participant on any request for the
extension of the period of inspection.


J. Provide to the other Participant, without delay, all
information resulting from the inspection pertaining to the
national security interests of the other Participant.
End of Annex.
CLINTON