CWC: GUIDANCE FOR CONSULTATIONS ON SITUATIONS

UNCLAS STATE 007952

SENSITIVE
SIPDIS
THE HAGUE FOR CWC DEL

E.O. 12958: N/A
TAGS: PARM PREL CWC OPCW CBW
SUBJECT: CWC: GUIDANCE FOR CONSULTATIONS ON SITUATIONS
NOT FORESEEN BY THE CONVENTION

REFS: A) EC-58/9 (Report of the Fifty-Eighth Session of
the Executive Council, October 16, 2009)
B) EC-58/NAT.12 (Russian Federation Statement on
EC-58 draft Report paragraph addressing guidelines
development, October 16, 2009)
C) 2009 State 116094 (CWC: Development of
Guidelines for RCW in Situations Not Foreseen by the
Convention)

BACKGROUND


1. (U) The October 13-16, 2009 session of the Executive
Council (EC-58) established a facilitation to develop
guidelines ?for the security and destruction of chemical
weapons(CW)that come into the possession and/or control
of a State Party or States Parties in situations not
foreseen by the convention, including conflict
situations and otherwise? (Ref. A). The only session of
this facilitation took place on November 19, 2009 under
the leadership of Mr. Michael Hurley as facilitator. The
November session provided interested delegations with an
opportunity to exchange views on the intended results
and scope of the mandate for the facilitation.


2. (U) Three delegations have provided insight on their
positions. In October 2009 (as a national paper at EC-
58),the Russian Federation stated its position that the
scope of the guidance should be confined to "conditions
of armed conflict" (Ref. B). The UK circulated draft
guidelines to a few selected States Parties that did not
further define the scope of "situations not foreseen by
the convention," leaving open the applicability to all
possible scenarios. The UK draft also contained text
that appears to make the guidelines legally binding and
contains elements for transparency while acknowledging
the need for operational security and safety
considerations. South Africa has circulated draft text
that is legally binding in form and contains
unrealistic, specific deadlines for recovering States
Parties' communication with the Technical Secretariat (TS).
It would also permit the EC to agree to
alternative verification and destruction measures.


3. (U) The U.S. position is that the guidance should be
limited in scope to the recovery of CW from a non-state
party during armed conflict situations; that the
guidance must be composed of political commitments, not
legally binding obligations; and that the timing of
actions taken under the guidelines must be governed by
the reality of operational security and safety
considerations, rather than firm, fixed deadlines.
Guidance provided for the November facilitation
articulates the U.S. position on these and other aspects
of appropriate guidelines that still apply (Ref. C).


4. (U) On January 15, 2009, the facilitator provided the
U.S. Delegation (Del) with a copy of his draft
guidelines and on January 19th announced planned
consultations on January 27th and February 3rd. The
facilitator apparently developed his draft in
consultation with the TS, but without direct
participation by any delegation. The TS distributed
copies of the facilitator's draft to all OPCW
delegations, also on January 19th.


5. (SBU) The facilitator's draft is inconsistent with
the U.S. position in several critical respects.

-- Scope. The draft guidelines would potentially apply
to all occurrences of CW "discovery" under ill-defined
and ambiguous conditions described as the occurrence of
an irresistible force or an unforeseen event. The United
States supports a scope that is limited to recovery and
destruction of CW during armed conflict situations from
States not party to the Chemical Weapons Convention
(CWC). The limited approach described in the U.S.
position is consistent with the scope of the issue as
originally raised, and consistent with consultations
that led to the authorization of this effort by the EC.
The situation of armed conflict is the only situation
clearly defined and ripe for resolution in connection
with this proposed guidance.

-- Legally binding. Although the facilitator has
indicated that his draft guidelines are not intended to
be legally binding, the draft text contains language
that would make its provisions legally binding.
Promulgating legally binding commitments does not appear
to be within the authority of the EC. Furthermore, by
the terms of the EC-58 Report (Ref. A),the EC has not
authorized the facilitator to negotiate new legally
binding obligations on this subject. The guidelines can
only constitute politically binding transparency
measures.

-- Rigid reporting timeframes. The draft includes
specific deadlines (e.g., not later than 30 days). The
United States cannot support firm deadlines for taking
action under the guidelines. Such deadlines may be
untenable for any number of reasons under armed conflict
situations. Rather, the United States favors the
development of non-specific timeframes for taking
action, such as "as soon as practicable" or "as soon as
operational security and safety considerations will
permit." If more specific timeframes are included, they
must be qualified with such terms.

-- CWC declaration. The draft is structured to include
declaration of discovered CW under all possible
scenarios. The U.S. position is that declaration under
the CWC of CW discovered (recovered)and destroyed under
armed conflict situations is inappropriate as such
situations were not envisaged by the CWC. This view was
confirmed by the terms of the EC Report authorizing
paragraph that described these situations as events not
foreseen by the CWC (Ref. A). This is also the view of
the UK legal authorities and Legal Adviser of the OPCW
Technical Secretariat Onate. Although the States
Parties could agree to utilize procedures that parallel
the CWC declaration process, direct application of CWC
declaration procedures implies that the recovered CW
falls wholly within the CWC and would therefore be
misleading and inappropriate.

GUIDANCE


6. (SBU) U.S. proposals may be met with suspicion and
even rejected by some delegations. Therefore, it is
important that Del maintains a constructive profile
during the January 27th consultations and elicits the
views of other delegations. During the January 27th,
February 3rd, and future consultations, Del should draw
upon the background above and the following points, as
appropriate, to clarify the U.S. position and attempt to
move the facilitation away from the facilitator's text
as drafted and in a direction consistent with the U.S.
position:

-- The United States appreciates the significant amount
of work by the facilitator in developing this draft.
However, the United States is very concerned with the
new direction taken in this draft - both in structure
and content. This draft departs from both the earlier
proposals and the agreed tasking, which is understood to
be drafting guidelines to cover a very limited number of
possible events not envisaged by the drafters of the
CWC, such as the recovery of CW munitions from a non-
state party under armed conflict situations. Without
significant revision, the United States cannot support
the use of this draft, even as a basis for
consultations.

-- The draft reads as if it is intended to be legally
binding. The EC has not authorized the development of
new legal obligations. The guidelines are intended to be
politically binding only.

-- The scope of the draft goes well beyond the immediate
need for guidance in the event of the recovery of CW
from a non-state party during armed conflict situations.
The guidelines, as drafted, could be viewed as applying
to a broad range of situations involving CWC
implementation, such as reporting, verification, and
destruction activities, which could have detrimental
effects. This would open an avenue for potential abuse.
For instance, if an unforeseen event makes it impossible
for the TS to conduct on-site site inspections (per
paragraph 5 of the draft),alternative means of
verification would be permitted, perhaps undermining the
CWC.

-- The use of the definition of "force majeure" as a
criterion for application of the guidelines is
inappropriate, since the understanding and application
of this concept vary considerably internationally. Its
use could potentially allow countries to circumvent
ongoing verification of declared stockpiles and their
destruction.

-- In addition to general U.S. concerns regarding the
scope and legally binding nature of the drafted
guidelines, the United States has concerns with specific
aspects of the draft. For example, during armed
conflict situations, the appropriateness of requiring
declarations remains unsettled, and imposition of the
CWC declaration requirements would seem to be premature
and presumptive. The CWC declarations process presumes
a peacetime environment, and direct application of those
procedures implies that the recovered CW are to be
treated the same as any other CW under the CWC. As
these events are situations that the EC has agreed are
unforeseen by the CWC, this practice would be misleading
and lead to confusion and dispute. Furthermore, the
establishment of rigid timeframes, as suggested in
paragraph 4(a) of the draft, appears to be in conflict
with the nature of the subject - armed conflict
situations.

-- The United States believes that basic parameters such
as scope of applicability and legal status need to be
agreed to before any drafting exercise will be useful.

-- The document is too long and complex, and is likely
to lead to a lengthy textual negotiation and, if
approved, disputes in its application. The guidelines
should be a much simpler document, structured along the
lines of the draft prepared by South Africa.


7. (U) Del should encourage the facilitator to keep the
South African text on the table for consideration as a
model for the structure of the guidelines, and work to
shift the conversation towards a similar approach and
away from the form and detail of the facilitator's
draft.
CLINTON