CWC: URGENT LEGAL QUESTIONS ON U.S. SUPPLEMENTAL

UNCLAS THE HAGUE 000245

SENSITIVE
SIPDIS

STATE FOR ISN/CB, VCI/CCA, L/NPV (BROWN)
SECDEF FOR OSD/GSA/CN,CP>
JOINT STAFF FOR DD PMA-A FOR WTC
NSC FOR LUTES

E.O. 12958: N/A
TAGS: PARM PREL KTIA CWC IZ
SUBJECT: CWC: URGENT LEGAL QUESTIONS ON U.S. SUPPLEMENTAL
DECLARATION ON IRAQ

REF: A. THE HAGUE 236

B. ROBINSON/MIKULAK EMAIL (04/06/09): TS MEETING ON
IRAQ

C. GARNER/CWC DEL EMAIL (04/01/09): U.S.
SUPPLEMENTARY DECLARATION AND COVER LETTER

This is CWC-21-09.


1. (U) This is an action message -- see para 9.

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


2. (SBU) SUMMARY: On April 14, Delreps met with
OPCW Technical Secretariat (TS) Legal Advisor
Santiago Onate, Director of Verification Horst
Reeps, Chemical Demilitarization Branch Head
Dominique Anelli and other TS staff. Legal Advisor
Onate's view is that the U.S. choice to submit its
information on rounds recovered and destroyed in
Iraq as a U.S. supplementary declaration raises a
number of legal and verification related questions.
The declaration format forces the Secretariat to
seek additional information that the U.S. is
unlikely to provide and, most importantly, raises
the question of why the U.S. did not declare the
chemical weapons at the time of discovery. Iraq's
status at the time as a State not Party aside, the
U.S., as a State Party to the Chemical Weapons
Convention, had an obligation to report any
chemical weapons of which it took possession, and
to destroy them in accordance with the Convention
under verification.


3. (SBU) The Secretariat requests further
clarification from the U.S. before Friday, April
17, on the U.S. legal basis for the declaration in
order to know how to proceed at the destruction
informals on April 20. They offered an alternative
option, that the information be submitted as a
supplement (appendix) to the Iraqi declaration. As
the TS's recommended course of action requires
coordination with the governments of Iraq and the
UK, Del requests guidance as soon as possible. END
SUMMARY.

--------------
TS LEGAL OPINION
--------------


4. (SBU) The purpose of the meeting was to follow
up on a meeting on April 6 during which Reeps and
others -- without the benefit of a TS legal opinion
-- asked a number of questions about the U.S.
supplemental declaration on rounds recovered in
Iraq (refs A and C). Questions centered on why the
U.S. had submitted a declaration, as opposed to a
letter that could serve as a transparency measure
without creating the legal obligations of a
declaration. The full list of TS questions was
forwarded to Washington for review (ref B).


5. (SBU) Legal Advisor Onate told Delreps that he
had thoroughly reviewed the U.S. supplementary
declaration and the Convention, and that he was
unable to match the U.S. declaration with the
provisions of the Convention. Onate acknowledged
that the situation of a State Party destroying
chemical weapons on the territory of a State not
Party is unique; he pointed out that the natural
basis for a chemical weapons declaration is Article
III, but noted that the U.S. had never declared
these chemical weapons before or at the time of
their destruction. He added that, while
destruction does occasionally take place without TS
observation, it is at least declared to the OPCW

before the destruction occurs. The fact that this
information is being provided independently of
Iraq's declaration raises additional questions.


6. (SBU) Onate then outlined two possible
scenarios. The first was that the chemical weapons
in Iraq were considered to be under the control of
the U.S. In this case, Onate believes that the
question of why these rounds were not declared at
the time of discovery/destruction could lead to
more serious questions as to whether or not the
U.S. acted in accordance with its CWC obligations.
The second scenario Onate could envision was one in
which the U.S. considered its actions to have been
performed in accordance with the relevant United
Nations Security Council Resolutions, as had been
done by the U.S. and UK in letters to the Security
Council in 2003 (S/2003/538 May 8, 2003) and 2007
(Annex I to UNSCR 1762/ 2007).


7. (SBU) Onate pointed out that the submission of
the information in a declaration format raises a
number of verification-related obligations that
could become very complicated. As an alternative,
he suggested the U.S. (and UK) might consider
appending the information on recovered rounds to
Iraq's initial declaration, perhaps in the same
category as other narrative descriptions of past
activities. Iraq, of course, would have to agree
to do this. If this were provided as a transparency
measure on the part of Iraq and others, it would
eliminate the need to question the legality of a
declaration, as there are no obligations concerning
chemical weapons destroyed prior to the
Convention's entry into force for a State Party.


8. (SBU) Onate reiterated that it would be prudent
for the U.S. to avoid the concept that it had at
any time taken possession of these chemical
weapons. This would inevitably lead to questions
about whether the U.S. had been acting in
compliance with the Convention when it delayed
declaration of the recovered rounds ) a clear
obligation as a State Party to the CWC. He added
that he had done some research into the concepts of
jurisdiction and/or control (both terms used in the
Convention) and did not believe this would be a
productive discussion, nor would it be appropriate
for the OPCW.

--------------
ACTION REQUEST
--------------


9. (SBU) TS officials consider it a matter of
urgency to resolve the legal status of the U.S.
submission by Friday April 17, before the
Secretariat, U.S., and UK make their respective
presentations at the Destruction Informals on April

20. If the U.S. agrees that the information in the
supplemental declaration could instead be submitted
as an annex to Iraq's initial declaration, rapid
coordination with Baghdad and London will be
essential. If the U.S. position is to stand by the
U.S. declaration as submitted, Del requests clear
guidance as to the legal basis for U.S. actions and
its compliance with the CWC.


10. (U) BEIK SENDS.

GALLAGHER