VZCZCXYZ0173
OO RUEHWEB

DE RUEHC #7952 0270406
ZNR UUUUU ZZH
O 270358Z JAN 10
FM SECSTATE WASHDC
TO AMEMBASSY THE HAGUE IMMEDIATE 0000

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