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S E C R E T GENEVA 000840 
 
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E.O. 12958: DECL: 09/21/2019 
TAGS: KACT MARR PARM PREL RS US START
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA (SFO-GVA-V): 
(U) FOURTH MEETING OF THE INSPECTION PROTOCOL WORKING 
GROUP, SEPTEMBER 28, 2009 
 
REF: GENEVA 00831 (SFO-GVA-V-039) 
 
Classified By:  A/S Rose E. Gottemoeller, United States 
START Negotiator.  Reasons:  1.4(b) and (d). 
 
¶1.  (U) This is SFO-GVA-V-025. 
 
¶2.  (U) Meeting Date:  September 28, 2009 
                Time:  3:00 p.m. to 5:55 p.m. 
               Place:  Russian Mission, Geneva 
 
------- 
SUMMARY 
------- 
 
¶3.  (S) The fourth meeting of the Inspection Protocol Working 
Group (IPWG) focused on discussion of the U.S.- and 
Russian-proposed joint draft text (JDT) of Section II of the 
Inspection Protocol (IP) regarding inspector and air crew 
privileges and immunities.  The Russian delegation presented 
its concept of "inspections" and "inspection-visits" as well 
as a three-level approach to documenting the treaty 
provisions and implementation specifics. 
 
¶4.  (S) The U.S. side said it was encouraging to hear the 
Russian delegation express recognition of the need for 
specifying three levels of detail in describing and 
implementing the inspection process required for 
verification.  The U.S. side said questions remain regarding 
the potential role of the Bilateral Consultative Commission 
(BCC) in developing the third level annex, the timing of the 
conclusion of the annex, and how the annex will fit with the 
rest of the treaty package that will be subject to 
ratification. 
 
------------- 
LEGAL DEBATES 
------------- 
 
¶5.  (S) At the fourth meeting of the IPWG, Col Ilin 
introduced the topic of inspector privileges and immunities 
and, as agreed in the previous meeting, invited the legal 
advisors from the two delegations to discuss the JDT of 
Section II of the IP addressing these issues.  Ms. Kotkova 
outlined the areas of the text that she understood were in 
question--the grounds for objecting to the inclusion of an 
inspector on the START Inspector List, the inviolability of 
office premises, and the diplomatic immunities accorded to 
inspectors.  Dr. Warner stated that he preferred to go 
through the text sequentially in addressing these issues and 
requested that Kotkova and Mr. Brown begin with paragraph 6 
of the U.S.-proposed text for Sections I and II (Reftel). 
Warner explained that the U.S.-proposed text included the 
provision from START that a proposed inspector could only be 
objected to if he or she were "under indictment for a 
criminal offense" while the Russian text did not.  He said 
that the Russian delegation had provided its text on 
September 27, 2009. 
 
Begin text of official translation of the Russian-proposed 
text: 
 
                                    Official Translation 
 
 
 
                                    Working Group II 
                                    As of September 27 
 
Inspections, Visits, and Exhibitions 
(Joint Text) 
 
II. Provisions Concerning the Legal Status of Inspectors, 
Monitors, and Aircrew Members 
 
      ¶1.    Inspections, ((inspection visits and))2 
exhibitions ((and continuous monitoring activities)) shall be 
conducted by inspectors ((and monitors))1.  ((Except as 
provided for in paragraph 6 of Section IV of this 
Protocol,))1 inspectors ((and monitors))1 shall be 
transported to the territory of the inspected Party by 
inspection airplanes, commercial flights ((,and "Open Skies" 
aircraft))2. 
 
      ¶2. The list of inspectors shall not contain at any one 
time more than ((200))2 ((400))1 individuals ((, and the list 
of monitors shall not contain at any one time more than 300 
individuals))1.  The number of individuals on the list of 
aircrew members shall be determined at the discretion of each 
Party based on the premise that the number of aircrew members 
for each inspection airplane shall not exceed ten. 
Inspectors ((and monitors))1 ((and aircrew members))2 shall 
be citizens of the inspecting Party. 
 
      ¶3. Each Party shall have the right to amend its lists 
of inspectors ((, monitors))1, and aircrew members no more 
than once in each ((three-month))2 ((21 day))1 period ((, by 
providing the other Party with a notification in accordance 
with paragraph 20 of Section III of this Protocol))1.  With 
each change, the number of inspectors whose names are entered 
in the list of inspectors shall not exceed 30 while the 
number of aircrew members whose names are entered in the list 
of aircrew members shall not exceed 25.  The Party receiving 
notification of an amendment to the list of inspectors or 
aircrew members shall provide notification to the other 
Party, in accordance with ((paragraph 5 of Subsection VI of 
Section IV of this Annex))2, of its agreement with or 
objection to the designation of each such inspector or 
aircrew member. 
 
      ¶4. The lists of inspectors and aircrew members shall 
contain, for each proposed inspector and aircrew member, the 
first name, middle name or patronymic, and last name; day, 
month, and year of birth; place of birth (city, oblast or 
state, and country); and passport number, if available. 
 
      ¶5. No later than 25 days after the initial exchange of 
lists, or no later than 30 days after receipt of a 
notification of amendments to the lists of inspectors or 
aircrew members, the Party receiving such lists or proposed 
amendments thereto shall provide visas and, where necessary, 
such other documents to each individual to whose designation 
it has agreed, as may be required so that each inspector or 
aircrew member may enter and remain in the territory of that 
Party throughout the in country period.  The inspected Party 
shall ensure that such visas and appropriate documents shall 
be issued for a period of at least 24 months, and the 
inspecting Party shall ensure that individuals receiving such 
 
 
visas and appropriate documents shall use them only for the 
purpose of conducting inspections and visits in accordance 
with the provisions ((of Section V of this Annex))1. 
 
      ¶6.  ((An individual on the list of inspectors may be 
objected to only if that individual is under indictment for a 
criminal offense on the territory of the inspected Party or 
if that individual has been convicted in a criminal 
prosecution or expelled by the Party reviewing the list.))1 
An individual on the list of inspectors ((, monitors))1 or 
aircrew members may be objected to in the future if that 
individual is found unacceptable by the Party reviewing the 
list.  The Party making such an objection shall so notify the 
other Party in accordance with ((paragraph 5 of Subsection VI 
of Section IV))2 ((paragraph 21 of Section III of this 
Protocol))1.  Individuals who are objected to shall be 
deleted from the lists. 
 
      ¶8. ((sic - paragraph number 7 is missing - Trans.)) An 
inspection team shall include no more than ((9))2 ((10))1 
inspectors. 
 
      ¶9. A team participating in ((an inspection visit,))2 
shall include no more than ((7))2 ((10))1 inspectors. 
 
      ¶10. A team participating in an exhibition shall include 
no more than ten inspectors. 
 
(( ))1 - U.S.proposed 
(( ))2 - Russian proposed 
 
End text. 
 
¶6.  (S) Kotkova asserted that each Party should decide for 
itself which persons it would allow entry and exit rights to 
its territory and that the legislative framework of both 
countries did not require any explicit grounds for rejection 
to be provided.  Further, she noted that she had consulted 
with colleagues familiar with START implementation and found 
that cases of either side objecting to proposed inspectors 
had not occurred frequently, but when it did, it was not 
because of this paragraph. 
 
¶7.  (S) Brown explained that the U.S. position was based on 
precedent from START, the Intermediate Nuclear Forces (INF) 
Treaty, Threshold Test Ban, and the Peaceful Nuclear 
Explosions Treaties.  This provision was included in each of 
these treaties, and they were negotiated and signed during a 
time when the privileges and immunities accorded to 
inspectors were unusual for the Soviet Union to grant to any 
foreigner, especially an American.  It was a show of trust, 
and omitting it now would be a step back to a time of much 
less trust between the sides.  Kotkova disagreed, believing 
that the change highlighted the fact that the Parties trust 
each other so much that they do not need to list grounds for 
rejecting a proposed individual since they can have 
confidence that the right of rejection without justification 
will not be abused.  Ilin concluded that the two Parties were 
not able to agree, but noted that it was significant that, 
even though there had been objections, there had not been a 
single case of rejection based on the criminal offense 
provision.  He also noted that times had changed and that, 
since the Russian Federation is a state based on rule of law, 
 
 
the specific grounds for objection would be governed by 
Russian legislation.  Brown asked, as a matter of legal 
clarification, if the provision were to be included in the 
treaty, would it not change Russian law with respect to the 
matter.  Kotkova responded that if Russia signed the treaty, 
it entered into force, and it did provide for specific 
grounds, the provisions of the international agreement would 
apply. 
 
------------------------------------------- 
VIENNA CONVENTION LIVES BUT WE'RE IN GENEVA 
------------------------------------------- 
 
¶8.  (S) Brown presented the U.S. rationale for retaining the 
provisions that describe the specific privileges and 
immunities accorded to inspection teams and air crews, in 
paragraph 10 and its eight subparagraphs in the U.S.-proposed 
JDT.  The conditions specified in the U.S. version of the 
chapeau including the key phrases "for purpose of 
implementing the Treaty" and "not for their personal benefit" 
have precedent not only in the START and INF treaties but 
also in the multilateral Chemical Weapons Convention (CWC). 
Kotkova replied that they were not included in the Russian 
version because they were considered to be self-evident. 
Ilin further stated that the language was excessive--these 
conditions and privileges were implied in the definition of 
an inspector.  (Begin comment:  The U.S. delegation 
subsequently discovered that the Russian-proposed draft 
treaty text includes this specific provision at paragraph 6 
of Article XI and called this to the attention of the Russian 
side at our next working group meeting.  End comment.) 
 
¶9.  (S) A discussion then ensued around the question of the 
time period during which these immunities were to apply.  It 
was discovered that wording in the chapeau at the end of 
paragraph 10 of the U.S.-proposed draft corresponded closely 
to wording at the end of paragraph 6 of the Russian 
version--both saying that the rights of status apply when the 
inspection team is within the territory of the other Party. 
Warner stated that he would show the phrase at the end of 
Paragraph 6 as agreed language. 
 
¶10.  (S) Warner then noted that references to monitors and 
monitoring activities in several of the subparagraphs would 
remain conditional for now, dependent upon the ultimate 
resolution of the continuous monitoring of mobile ICBM 
production issue, and turned the discussion to subparagraphs 
(d) and (e).  The second part of subparagraph (d) specifies 
that the inviolability accorded to inspection airplanes for 
transport of inspection teams does not apply to commercial 
flights.  Brown provided the historical background about why 
this had been a concern during START negotiations and was 
deemed useful. 
 
¶11.  (S) Brown presented the "immunity from jurisdiction" 
provision in the second half of subparagraph (e) as one that 
had strong precedent in INF, CWC, and the other nuclear arms 
control treaties.  It would allow the inspecting Party to 
waive immunity if an inspector violated the law and it must 
be expressed in writing.  Kotkova pointed out that whether or 
not the provision is in the treaty, a Party may reject 
immunity from jurisdiction by rule of customary international 
law.  The Vienna Convention on Diplomatic Relations is 
 
 
recognized by both the United States and Russia and codifies 
the existing rule of international law in this area, and that 
it made no difference whether it was in the new treaty or 
not.  Neither Russia nor the United States would dispute the 
fact that States have the right to do this. Kotkova clarified 
that customary practice is that the waiver must be express, 
so there was no need to include that in the treaty.  Warner 
stated that he did not disagree with the points made but 
pointed out that we had agreed in the past to make these 
terms explicit.  Kotkova agreed that the Russian side did not 
have a proposal for covering the immunities explicitly and 
would follow what was in the U.S.-proposed text, but just did 
not believe it needed to be in the new treaty.  It was agreed 
that the language would remain bracketed. 
 
------------------------- 
WHERE DID THE AIRCREW GO? 
------------------------- 
 
¶12.  (S) The discussion then turned to subparagraph (h) which 
deals with consultations if there has been an abuse of 
privileges--the U.S.-proposed JDT includes these provisions 
while the Russian version does not.  Brown pointed to the 
precedents for this under START, INF, and CWC, stating that 
it would provide for useful consultations to ensure there was 
no recurrence of an abuse.  Kotkova stated that it was 
deleted from the Russian-proposed text because the provision 
had not been used under START but in the framework of the 
treaty, it could be useful.  Ilin agreed to include the 
provision as agreed text. 
 
¶13.  (S) Ilin proposed shortening and combining subparagraphs 
(e) (according diplomatic immunities) and (g) (bringing 
personal items with no customs required) and separating out 
the second part of (e) (immunity from jurisdiction) into a 
new subparagraph.  Warner said the U.S. team would look at a 
combination of subparagraphs (e) and (a) (diplomatic 
inviolability).  There was then some discussion of the ending 
chapeau of paragraph 10 which includes the concepts of 
according privileges and immunities for the entire time on 
territory as well as non-interference in internal affairs. 
It was agreed that the provisions apply to inspectors and 
aircrew.  Ilin agreed that the Russian delegation would work 
on the chapeau and Warner agreed that the U.S. delegation 
would look at combining sub-paragraphs (a) and (e). 
 
¶14.  (S) Warner discussed the potential use of Open Skies 
aircraft as proposed in Subsection III of Section V of the 
Russian-proposed Annex and as mentioned in discussion of 
transporting inspectors. In principle, the U.S. has no issue 
with using the Open Skies aircraft for transporting 
inspection teams to the inspected country.  Warner did, 
however, note a potentially serious timing/synchronization 
problem.  Departures of START and presumably START Follow-on 
(SFO) inspection teams from the territory of the inspected 
Party are mandated to be no later than 24 hours after the 
inspection team returns to the POE.  The Open Skies Treaty 
has a similar provision regarding Open Skies personnel.  A 
sequential SFO inspection/visit or delay in aircraft 
departure could delay the departure of the inspecting Party 
and thus not allow them to synch up with the departure of the 
Open Skies aircraft and thus comply with the maximum 24 hour 
stay limit at the POE on the way out.  Ilin said they were 
 
 
aware of the timing issues, but still wanted to move forward 
with the use of an Open Skies aircraft option. 
 
------------------------------- 
AN INSPECTION BY ANY OTHER NAME 
------------------------------- 
 
¶15.  (S) Ilin presented a handout in both Russian and 
unofficial English translation, defining the terms 
"inspection" and "inspection-visit."  After hearing the 
presentation, Warner asked about the absence of discussion of 
the term "exhibition" as a third form of inspection activity. 
 The U.S. delegation had understood confirmation of technical 
characteristics to be an exhibition activity rather than the 
subject of an inspection visit.  Ilin stated that exhibitions 
would apply to new items.  After items had been demonstrated 
in an exhibition, the inspecting Party would have the right 
to verify or confirm where new items were deployed.  An 
"inspection-visit" would be used to confirm while an 
exhibition would demonstrate.  This is part of the Russian 
concept of a three-level approach. 
 
Begin text of official translation of Russian Paper: 
 
                              To Be Turned Over to the 
                              U.S. Side 
                              Paper of the Russian Side 
                              September 28, 2009 
 
                              Working Group II 
                              Russian-Proposed Wording for 
Terms 
 
      Inspection - activities of the Parties to the Treaty, 
carried out in accordance with Article XI of the Treaty, 
aimed at verifying that they have fulfilled the obligations 
concerning reduction and limitation of deployed ICBMs, 
deployed SLBMs, and deployed HBs, deployed launchers of 
ICBMs, deployed launchers of SLBMs, as well as warheads on 
deployed ICBMs, deployed SLBMs, and deployed HBs. 
 
      Inspections shall be conducted in accordance with the 
procedures recorded in ((Section V of the Annex to the 
Treaty))1((the Protocol on Inspections...))2. 
 
      Inspection visit - activities of the Parties to the 
Treaty, carried out in accordance with Article XI of the 
Treaty aimed at confirming: 
 
      - data on the number of non-deployed ICBMs, 
non-deployed SLBMs, non-deployed HBs, non-deployed launchers 
of ICBMs, and non-deployed launchers of SLBMs; 
 
      - data on technical characteristics of strategic 
offensive arms, provided during an exchange of information or 
demonstrated during exhibitions of new items of SOAs, or in 
the course of confirming that items of SOAs have been 
converted for new kinds of SOAs; 
 
      - that items of SOAs or SOA facilities have been 
eliminated. 
 
      Inspection visits shall be conducted in accordance with 
 
 
the procedures agreed by the Parties in the Bilateral 
Consultative Commission (BCC) and recorded in BCC Agreements. 
 
(( ))1 Proposed by the United States 
(( ))2 Proposed by the Russian Federation 
 
End text. 
 
¶16.  (S) Warner stated that he did not disagree with the idea 
of an inspection as applying to confirming numbers of 
deployed items.  He preferred to describe the inspections 
with an additional adjective but recognized it as a matter of 
taste.  He stated that the U.S. translation would be 
"inspection-visit" and agreed that it would focus on 
confirming data on non-deployed items.  But there was 
continuing confusion over how technical characteristics would 
be handled.  How to handle new types was clear in the 
proposal but he was not aware of the continuing need to check 
technical characteristics on existing systems. Additionally, 
confirming an elimination seemed to fit into the category of 
an inspection-visit. 
 
--------------------------------------------- --- 
DETAILS MATTER BUT WHERE ARE THE TIES THAT BIND? 
--------------------------------------------- --- 
 
¶17.  (S) Ilin stated that it was important to stipulate the 
procedures to be set forth in the Annex or Protocol of the 
treaty and the required detail to implement the treaty 
provisions.  He attempted to explain the philosophy of a 
three-level approach that included the treaty articles as the 
first level, the Annex or Protocol as the second level, and 
BCC agreements as the third level. 
 
¶18.  (S) Warner agreed with the description of treaty level 
and protocol or annex level (perhaps termed a "Single 
Collection of Protocols"). His vision of the third level, 
however, was of a fairly detailed set of provisions to be 
used by the BCC but developed by these delegations during 
this negotiation.  The yellow highlighting in the draft JDT 
would become wording at this level.  This third level would 
be of great value, especially to inspectors and escorts, and 
would frequently be used as a primary reference during 
inspections to guide procedures.  The U.S. prefers to 
negotiate these detailed procedures during this negotiation 
rather than delaying their development for the formation of 
the BCC.  This is possible because of the previously agreed 
procedures and work of the Joint Compliance and Inspection 
Commission.  The United States believes that these detailed 
procedures constitute an important document for use by the 
BCC but not one that we could wait for the BCC to build. 
 
¶19.  (S) Ilin was happy with the agreement on levels and said 
he was ready to discuss all details, but with the difference 
that these provisions would not be a part of the treaty for 
ratification--these detailed provisions would be left to the 
BCC.  The important provisions would be specified and 
stipulated in the Protocols--the third level would enter into 
force after the treaty and not be ratified.  Warner stated 
that, under this approach, some of the issues in the annexes 
may have to move up to the protocol level because they are 
relevant to ratification.  For example, key aspects of the 
warhead inspection may need to be specified.  In START, 
 
 
inspections were described in the treaty, the protocol 
provided more description and how to get to the POE and base, 
and the annex told how to conduct the actual inspection.  For 
the U.S. ratification process, we can't say "the details will 
come later." 
 
¶20.  (S) Ilin concluded the meeting by stating that the main 
point was that both sides would have to better understand 
what has to go into the BCC documentation before treaty 
signature.  The BCC would not start from a blank sheet but 
from the basis of the past agreements.  He provided a copy of 
a proposed JDT on Inspections, Visits, and Exhibitions in 
Russian. 
 
¶21.  Documents exchanged: 
 
Russia: 
 
      - Russian-Proposed Language of Terms--Inspections and 
Inspections Visits, dated September 28, 2009; and 
 
      - Russian-Proposed Joint Draft Text for Inspection, 
Visits, and Exhibitions (Joint Text), in Russian, dated 
September 27, 2009. 
 
¶22.  (S) Participants: 
 
U.S. 
 
Dr. Warner 
Ms. Bosco 
Mr. Brown 
Mr. Buttrick 
Mr. DeNinno 
Mr. Fortier 
Maj Johnson 
Ms. Pura 
Mr. Rust 
Mr. Sims 
Mr. Smith 
Ms. Gesse (Int) 
 
RUSSIA 
 
Col Ilin 
Amb Antonov 
Mr. Izrazov 
Mr. Kostuchenko 
Ms. Kotkova 
Col Novikov 
Gen Orlov 
Mr. Vorontsov 
Mr. Shevchenko 
Ms. Komshilova (Int) 
 
¶23.  (U) Gottemoeller sends. 
RICHTER