VZCZCXYZ0000
OO RUEHWEB

DE RUEHGV #0615/01 2061158
ZNY SSSSS ZZH
O 251158Z JUL 09
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8917
RUEAIIA/CIA WASHINGTON DC IMMEDIATE
RUEKDIA/DIA WASHINGTON DC IMMEDIATE
RUEKJCS/CJCS WASHINGTON DC IMMEDIATE
RUEKJCS/VCJCS WASHINGTON DC IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RHEHNSC/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE
RUEKJCS/SECDEF WASHINGTON DC IMMEDIATE
RUEHNO/USMISSION USNATO IMMEDIATE 4646
RHMFISS/DEPT OF ENERGY WASHINGTON DC IMMEDIATE
RHMFISS/DTRA ALEX WASHINGTON DC IMMEDIATE
RUESDT/DTRA-OSES DARMSTADT GE IMMEDIATE
RUENAAA/CNO WASHINGTON DC IMMEDIATE
RHMFISS/DIRSSP WASHINGTON DC IMMEDIATE
INFO RUEHTA/AMEMBASSY ASTANA PRIORITY 1827
RUEHKV/AMEMBASSY KYIV PRIORITY 0825
RUEHMO/AMEMBASSY MOSCOW PRIORITY 6000

S E C R E T GENEVA 000615 
 
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: 07/25/2019 
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA 
(SFO-GVA-III):  (U) START FOLLOW-ON NEGOTIATIONS, JULY 24, 
2009, LAWYERS' MEETING ON FINAL PROVISIONS AND PREAMBLE 
 
REF: GENEVA XXXXX (SFO-GVA-III-003) 
 
Classified By:  A/S Rose E. Gottemoeller, United States 
START Negotiator.  Reasons:  1.4(b) and (d). 
 
¶1.  (U) This is SFO-GVA-III-004. 
 
¶2.  (U) Meeting Date:  July 24, 2009 
               Time:  11:00 A.M. - 12:30 P.M. 
               Place:  U.S. Mission, Geneva 
       Participantts: 
 
U.S.                   Russia 
 
Mr. brown              Ms. Kotkova 
 
------- 
SUMMARY 
------- 
 
¶3.  (S) U.S. (Brown) and Russian (Kotkova) lawyers met to 
discuss Russian-proposed texts for the final provisions and 
preamble (REFTEL).  Brown sought clarification of differences 
between those texts and the Russian "vision" paper of June 1, 
2009, as well as between those texts and the START Treaty. 
For the final provisions, Kotkova explained that her intent 
had been to simplify the texts and, therefore, she had 
removed provisions that, while not legally objectionable, 
were redundant or otherwise unnecessary.  Brown noted that 
some of the deleted texts had been used historically in arms 
control agreements and, therefore, their deletion might raise 
questions; in most cases Kotkova indicated that the full 
START formulations could be used if necessary.  For the 
preamble, Kotkova was able to provide background on the 
derivation of some of the provisions and promised to seek 
more information for those she was unclear about. 
 
---------------- 
FINAL PROVISIONS 
---------------- 
 
¶4.  (S) Brown noted that many of the paragraphs in the 
Russian-proposed text of the Final Provisions used 
abbreviated formulations compared to those in Articles XVI 
through XIX of the START Treaty.  Kotkova explained that she 
had deliberately sought to simplify the texts but had not 
intended to change their meaning.  For instance, in paragraph 
1 of the Russian proposal, the words, "in accordance with the 
constitutional procedures of each Party" were deleted 
because, as far as she knew, there was no other way that 
ratification would be done.  Brown noted that the reference 
to constitutional procedures was contained in the Russian 
"vision" paper of June 1 and more importantly was used in 
Article XVII of START and in numerous other agreements, 
including INF, CWC, and the Moscow Treaty.  He asked whether 
it would be a problem if the U.S. Side requested its 
insertion:  Kotkova responded that it would not. 
 
¶5.  (S) Turning to paragraph 2 of the Russian text, Brown 
noted that there was no reference to supersession and no 
provision permitting extension, even though both had been 
contained in the Russian "vision" paper.  Kotkova explained 
that it was obvious that the treaty could be superseded if 
 
 
 
the Parties so agreed and, therefore, such a provision was 
redundant, citing Article 59 of the Vienna Convention on the 
Law of Treaties.  Brown noted that this was also a provision 
used in the START and Moscow Treaties.  On extension, she 
said that the Parties could agree to an extension without 
having such a reference in the START Follow-on Treaty.  Brown 
explained that the latter provision permitted an extension 
without going through the same constitutional procedures as 
would be required for its ratification.  Kotkova responded 
that there would be no difference for Russia:  there was 
still the need to obtain Duma approval, but she indicated 
that the formulation could be changed back to the START 
formulation. 
 
¶6.  (S) Brown noted that there was no reference to "integral 
parts" of the Treaty, as had been done in paragraph 1 of 
Article XVII of the START Treaty, and asked why this issue 
had not been addressed.  Kotkova commented that she had 
included that idea in a separate article that had not yet 
been presented to the U.S. Side.  In paragraph 4 of the 
Russian proposal, Brown observed that the START precedent, as 
well as those in other arms control treaties where "changes 
not deemed to be amendments" were permitted, was to 
specifically identify the objective of these changes, i.e., 
"to ensure the viability and effectiveness of the Treaty," 
commenting that this language was well-known by those in the 
U.S. Senate who followed this practice, and he cautioned 
against deleting this language because it might lead them to 
think that the practice was being changed.  Kotkova said that 
she was not aware of this aspect of the language and did not 
see a reason to object to it if the U.S. side insisted, but 
she had deleted it because she did not see a reason for its 
retention. 
 
¶7.  (S) Brown commented that paragraph 5 of the 
Russian=proposed text had replaced the words "withdraw from" 
with "terminate" and asked for Kotkova's explanation of the 
change, noting that the right to "withdraw from" the treaty 
had been used in a number of arms control agreements in both 
bilateral and multilateral contexts.  Kotkova, citing Section 
3 of the Vienna Convention, entitled "Termination and 
Suspension of the Operation of Treaties," noted that the 
effect of "withdrawal from" a bilateral treaty was 
"termination," and, therefore, it made more sense to use that 
term in that specific context, while "withdrawal from" made 
more sense for multilateral treaties.  Kotkova added that 
this is the way she read Article 54 of the Vienna Convention 
("Termination of or withdrawal from a treaty under its 
provisions or by consent of the parties") and that using such 
a clear formulation would make this more understandable to 
those in the Duma who might ask for clarification as to the 
legal effect of withdrawal.  Brown again cautioned against 
changing a formulation that had numerous precedents in this 
same field, but noted that he would consult with colleagues 
who specialized in Vienna Convention interpretations. 
 
-------- 
PREAMBLE 
-------- 
 
¶8.  (S) Remarking that he had gone through the 
Russian-proposed preamble and had compared it with the 
Russian "vision" paper of June 1, 2009, the U.S. "Elements" 
 
 
paper of May 19, 2009, and the START and Moscow Treaties' 
Preambles, Brown asked whether Kotkova could shed any light 
on the derivation of some of the formulations that he had not 
found in any of those documents.  Kotkova admitted that she 
had not been directly involved in developing this part of the 
text but that she might be able to provide some background. 
 
     - On the formulation "committed to the historical goal 
of freeing humanity from the nuclear threat," Kotkova thought 
that this related to the formulation in the Russian vision 
paper on "the commitment of Russia and the U.S. to the goal 
of the total elimination of nuclear weapons," as well as the 
formulation in both the Russian vision paper and the U.S. 
Elements paper on "demonstrable movement towards the ultimate 
goal of the elimination of nuclear arms," although she was 
not certain and would try to provide a more definitive answer. 
 
     - She was not aware of the derivation of either the 
formulation "considering the stabilizing influence on the 
global situation brought about by the radical and verifiable 
reduction of nuclear arsenals at the turn of the twenty-first 
century" or the formulation "seeking to maintain continuity 
and provide new impetus to the process of reducing and 
limiting nuclear arms while maintaining the safety and 
security of their nuclear arsenals, and with a view to 
multilateralization of this process in the future," but would 
try to find out. 
 
     - On the formulation, "desiring to create a mechanism 
for verifying compliance with the obligations under this 
Treaty, based on the procedures that were perfected in the 
START Treaty and supplemented by transparency and 
confidence-building measures," she indicated that this had 
come from the Russian military and she was not aware that 
this had come from any other source. 
 
     - On the formulation that begins with "Considering it 
necessary to bring the nuclear policy of the Russian 
Federation and the United States of America into alignment 
with our countries' post-Cold War relationship," she noted 
that this was contained in both the Russian vision paper and 
the U.S. Elements paper, but she agreed with Brown that a 
better formulation for the preamble would be to replace the 
words "our" and "us" with "their" and "them," to conform to 
the practice of referring to the parties in the third person. 
 
¶9.  (S) Brown recalled the comments made by A/S Gottemoeller 
on the Russian-proposed text for a preambular provision, 
stating that Belarus, Kazakhstan and Ukraine had "completely 
fulfilled" their START obligations and asked for 
clarification.  Kotkova explained that it was intentional 
that the Russian-proposed text focused on the obligations in 
the Lisbon Protocol rather than in the START Treaty itself, 
and then Brown and Kotkova went through the articles of that 
protocol, with Kotkova explaining that the three states had 
fulfilled their obligations in each instance, including most 
importantly acceding to the NPT as non-nuclear weapon states 
Parties.  Brown asked Kotkova how she would explain "full 
compliance" with Article I of that protocol, which states 
that the three states "shall assume the obligations" of the 
former Soviet Union.  She responded by distinguishing between 
"assuming the obligations" in that context and "fulfilling 
the obligations of START," which she acknowledged had not yet 
 
 
been done.  Kotkova said that such a positive statement was 
chosen in part to defuse Ukrainian interest in participating 
in START Follow-on Treaty negotiations.  Brown expressed his 
doubts that such a carefully crafted distinction would be 
politically supportable but he understood what the Russian 
Side was trying to do. 
 
¶10.  (S) Kotkova described how she had participated in a 
recent meeting between Antonov and his Ukrainian counterpart 
Nykonenko and that, during that meeting, she had argued that 
her analysis of the Ukrainian instrument of accession to the 
NPT demonstrated that Ukraine had already acknowledged that 
there was no linkage between START and Ukraine's status as a 
non-nuclear weapon state.  She also had no idea what Ukraine 
was trying to achieve by seeking a positive security 
assurance from the P-5 in case Ukraine was threatened by a 
third state. 
 
¶11.  (S)  On the text of a second preambular provision 
concerning Belarus, Kazakhstan and Ukraine ("Fully 
appreciating the contribution of...to the cause of general 
and complete nuclear disarmament and strengthening 
international peace and security as non-nuclear weapon 
states"), Kotkova explained that she thought these words had 
come directly from Kazakhstani Foreign Minister Tazhin and 
were also being proposed as an additional way to re-direct 
the interest of those states in participating in START 
Follow-on Treaty negotiations. 
 
------------------ 
ADDITIONAL LAWYERS 
------------------ 
 
¶12.  (S) Brown asked whether Kotkova would be getting 
reinforcements from Moscow in terms of additional lawyers, 
noting that he had at least one lawyer identified from the 
State Department to participate in the negotiations.  She 
responded that perhaps a lawyer from the President's Office 
would be coming but she was not certain. 
 
¶13.  (U) Documents exchanged.  None. 
 
¶14.  (U) Gottemoeller sends. 
GRIFFITHS