Viewing cable 08GENEVA1018
Title: JCIC-XXXIII: LAWYERS, MEETING ON ARTICLE XVII AND

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08GENEVA10182008-11-22 12:23:00 2011-08-30 01:44:00 SECRET US Mission Geneva
O 221223Z NOV 08
FM USMISSION GENEVA
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S E C R E T GENEVA 001018 
 
 
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TAGS: KACT PARM START JCIC INF US RS UP BO KZ
 
SUBJECT: JCIC-XXXIII: LAWYERS, MEETING ON ARTICLE XVII AND 
DRAFT JCIC AGREEMENT ON CESSATION OF CONTINUOUS MONITORING, 
NOVEMBER 19, 2008 (U) 
 
REF: GENEVA XXXX (JCIC-XXXIII-014) 
 
Classified By:  Jerry A. Taylor, United States Representative 
to the Joint Compliance and Inspection Commission. 
Reasons:  1.5(b) and (d). 
 
¶1.  (U) This is JCIC-XXXIII-019. 
 
¶2.  (U) Meeting Date:  November 19, 2008 
                Time:  3:30 P.M. - 5:00 P.M. 
               Place:  U.S. Mission, Geneva 
 
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SUMMARY 
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¶3.  (S) U.S. and Russian lawyers met to discuss Russian legal 
requirements if the decision were made to extend START for a 
5-year period pursuant to Paragraph 2 of Article XVII. 
Unlike the case for the United States, which does not require 
Senate advice and consent for such an extension, a proposed 
law on ratification of the extension must be submitted to the 
Duma and approved before the extension could enter into 
force.  Given the procedural requirements of submitting the 
law to the Duma, extension of START could be delayed unless 
other measures, such as "provisional application," were 
deemed legally sufficient to cover any intervening period. 
In any event, these requirements need to be taken into 
account as the Russian MFA determines when to submit the 
proposed law to the Duma.  The lawyers also discussed likely 
proposed changes to the U.S. draft JCIC Agreement on 
Completion of Continuous Monitoring Activities.  The changes 
will be provided by the Russian side through diplomatic 
channels. 
 
End Summary. 
 
¶4.  (S) Brown asked Kotkova for an explanation of what she 
had said to Miller (REFTEL) about the need for the Duma to 
ratify the Parties' agreement to extend START, if such a 
decision were made.  She confirmed that, in accordance with 
1995 Russian legislation on international treaties, the Duma 
is responsible for reviewing and approving any agreement, 
even an executive agreement, that would have the effect of 
extending START, and she understood that an equivalent 
process on the part of the U.S. side would not be necessary. 
She explained that the Russian legal interpretation was that 
the Duma, by approving the START Treaty which included a 
provision permitting 5-year extensions, had not/not 
authorized such extensions of the Treaty without further 
action of the Duma.  She said that the Russian legislation 
for ratification of treaties provided for a 6-month period 
for the Duma to consider a proposed action, which in this 
case would be in the form of a law on ratification of the 
extension, but that on an expedited basis it might be 
possible to finish that process in about 2 weeks. 
 
¶5.  (S) Kotkova cautioned, however, that the process of 
obtaining approval for CTR extension had dragged out much 
longer, requiring the government to submit the proposed 
extension law several times, during more than one 6-month 
period.  In such a case, however, she noted that the CTR 
agreement had been "provisionally applied" so that there was 
no gap in its application, and she raised the issue of 
whether this might be a way to ensure that START did not 
expire if Duma approval was not obtained in time.  Brown 
cautioned that provisional application might not be adequate 
to constitute an effective extension of START, in particular 
with regard to privileges and immunities, but he indicated 
that this was a subject that required further legal analysis 
if it appeared that provisional application might be 
seriously under consideration in a contingency plan, and he 
stated that this could be the topic of further discussion 
between the lawyers at a subsequent session. 
 
¶6.  (S) Kotkova also noted the complexity of possible 
post-START scenarios if, following a decision to extend 
START, START parties other than the United States and Russia 
insisted on the continuation of START even after START had 
been superseded, with respect to the United States and 
Russia, by a post-START agreement.  She indicated that she 
was planning to research these and other scenarios, some of 
which she believed might have useful precedents in agreements 
between the USSR and Yugoslavia that had been subsequently 
superseded.  Brown stated that he would also look into some 
of the scenarios she had described to identify relevant U.S. 
practice and approach. 
 
¶7.   (S) Kotkova then previewed a number of likely changes to 
the draft JCIC Agreement on Completion of Continuous 
MonitoQng that Russia would be providing to the United 
States through diplomatic channels several weeks after the 
end of the JCIC session.  She noted that the overall 
assessment of the U.S. draft agreement and the two exchanges 
of letters was very high among Russian experts and that the 
changes would be relatively minor.  She also stated that 
there were no concerns on the part of Russia that, even after 
START expiration, letters signed by JCIC representatives 
would continue to be in effect, as long as, by their terms, 
those letters were not limited in duration to START duration. 
 She explained that the JCIC representatives would be 
considered to be duly authorized to sign on behalf of their 
respective governments.  Brown indicated that this was his 
understanding as well and that there should be no need for 
the parties to produce "full powers." 
 
¶8.  The more significant changes to the U.S.-proposed texts 
previewed by Kotkova were: 
 
-  The term "monitored facility" should be used throughout 
the text rather than "perimeter continuous monitoring area" 
because some of the items mentioned in the draft agreement 
were located outside the perimeter continuous monitoring area 
and therefore the broader term, "monitored facility," was 
more accurate. 
 
- Belarus was insisting that all vehicles carrying equipment 
and supplies must complete transit through Belarus before 
START expiration or supersession, which would require a 
drafting change to Section I, paragraph (c) of the draft 
agreement. 
 
- Russia would be proposing the use of another airport for 
inspection aircraft (Section II, paragraph 2(c)), based on 
(unspecified) issues at the airport associated with the 
monitored facility. 
 
- Russia was prepared to allow requests for packing materials 
to be handled on site between the in-country escort and the 
monitoring team leader rather than through a 60-day advance 
notification process (Section II, paragraph 2(a)). 
 
      - The terms "conveyed" and "transferred" would be 
translated by a single Russian word, so it would be better if 
the English text used a single word in this context as well. 
Brown expressed his view that the term "conveyed" should be 
able to be used in both contexts in English and agreed to 
take this view back to the U.S. delegation. 
      - In the proposed exchange of letters on settlement of 
accounts, the separate references to Annex 14 and Annex 16 in 
the second paragraph could be simplified to a single 
reference to both, because Annex 16 does not "modify" Annex 
14, as stated in the U.S. text. 
 
¶8.  (U) Documents exchanged:  None 
 
¶9.  (U) Participants: 
 
U.S. 
 
Mr. Brown 
 
RUSSIA 
 
Ms. Kotkova 
 
¶10.  (U) Taylor sends. 
TICHENOR 
 
 
NNNN 
 



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