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DE RUEHGV #0171/01 0581201
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FM USMISSION GENEVA
TO RHEFDIA/DIA WASHINGTON DC IMMEDIATE
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE
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INFO RUEHGV/USMISSION GENEVA
RUEHKV/AMEMBASSY KYIV 0341
RUEHMO/AMEMBASSY MOSCOW 0345
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S E C R E T GENEVA 000171 
 
SIPDIS 
DEPT FOR T, VCI AND EUR/PRA 
DOE FOR NNSA/NA-24 
CIA FOR WINPAC 
JSCS 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: 2020/02/27 
TAGS: PARM KACT MARR PREL RS US
SUBJECT: SFO-GVA-VIII: (U) MEETING ON PROVISIONAL APPLICATION, 
FEBRUARY 23, 2010 
 
CLASSIFIED BY: Rose A. Gottemoeller, Assistant Secretary, Department 
of State, VCI; REASON: 1.4(B), (D) 
 
¶1.  (U) This is SFO-GVA-VIII-078. 
 
 
 
¶2.  (U) Meeting Date:  February 23, 2010 
 
                Time:  3:30 P.M. - 5:30 P.M. 
 
               Place:  Russian Mission, Geneva 
 
 
 
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SUMMARY 
 
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¶3.  (S) A meeting to discuss Part VIII of the Protocol-Provisional 
Application was held between Mr. Highsmith and Mr. Lobach.  This 
was the first meeting on provisional application in the eighth 
round of the negotiations.  In the previous session, the United 
States offered a draft proposal on provisional application.  Russia 
counter-offered its own, minimalist, draft on December 15.  Lobach 
explained the Russian approach was based on their view that a 
lengthy list of articles and Protocol sections to be provisionally 
applied would create a disincentive to prompt ratification.  He 
reiterated Russian opposition to inspections during the provisional 
application period due to U.S. inability to grant privileges and 
immunities, and he took the position that the treaty text would not 
allow for updating the initial data exchange during the provision 
application period.  He noted agreement on provision application of 
the articles on:  application of definitions; initial data 
exchange; voluntary confidence-building measures; noninterference 
with national technical means (NTM); and the Bilateral Consultative 
Commission (BCC).  He expressed a willingness to consider 
provisional application for conversion or elimination.  End 
summary. 
 
 
 
¶4.  (S) Subject Summary:  Review of U.S.-Proposed Text; 
Inspections; Counting Rules; New Kind of SOA and the BCC; 
Conversion or Elimination; Database and Notifications; 
Noninterference with NTM; Nonsubstantive Changes to Protocol; 
Definitions; and Agreed Statements. 
 
 
 
---------------------------- 
 
REVIEW OF U.S.-PROPOSED TEXT 
 
---------------------------- 
 
 
 
¶5.  (S) The sides reviewed a U.S.-proposed draft of Part VIII of 
the protocol, which was tabled in December during SFO-GVA-VII of 
the negotiations, in order to reach agreement on the list of 
provisions from the treaty and Protocol to be provisionally applied 
after signature, and pending entry-into-force (EIF). 
 
 
 
¶6. (S) This U.S.-proposed text is reproduced below, with article 
and paragraph numbers that reflect changes in the treaty and 
protocol texts since the document was tabled in December. 
 
 
 
Begin text: 
 
 
 
The Parties agree to apply the following provisions of the Treaty 
and this Protocol provisionally from the date of signature of the 
Treaty pending the entry into force of the Treaty: 
 
 
 
(a)  Article I, Paragraph 2 of the Treaty; (Applicability of 
Definitions of Terms) 
 
 
 
(b)  Article III, Paragraphs 3, 4, 6 and 7 of the Treaty; (Rules 
Regarding Which Strategic Offensive Arms (SOA) Are Covered by the 
Treaty) 
 
 
 
(c)  Article V, Paragraph 2 of the Treaty; (New Kind of SOA Can Be 
Raised In BCC) 
 
 
 
(d)  Article VI, Paragraphs 1, 2, and 3(a) of the Treaty; 
(Conversion or Elimination) 
 
 
 
(e)  Article VII of the Treaty; (Database, Notification of Changes 
To Database, Nuclear Risk Reduction Center (NRRC), Voluntary 
Notifications) 
 
 
 
(f)  Article VIII of the Treaty; (Voluntary Confidence-Building 
Measures) 
 
 
 
(g)  Article X, Paragraphs 1(a)-(c) and 2 of the Treaty; (NTM 
Noninterference and Non-Concealment) 
 
 
 
(h)  Article ((XIII))1((XII))2 of the Treaty; (BCC) 
 
 
 
(i)  Article ((XVI))1((XV))2, Paragraph 2 of the Treaty; (Changes 
to the Protocol Not Affecting Substantive Rights or Obligations 
Under the Treaty) 
 
 
(j)  Part One of this Protocol to the Treaty; (Definitions) 
 
 
 
(k)  Part Two of this Protocol to the Treaty; (Database) 
 
 
 
(l)  Part Three of this Protocol to the Treaty; (Conversion or 
Elimination) 
 
 
 
(m)  Part Four, Section I, Section II, Section III, Section IV, 
Section V, and Section VII of this Protocol to the Treaty; 
(Notifications Regarding Changes in Data, Movement of SOA, Flight 
Tests, Conversion or Elimination, Changes in Information) 
 
 
 
(n)  Part Six of this Protocol to the Treaty; (BCC) 
 
 
 
(o)  Part Nine of this Protocol to the Treaty; (Agreed Statements) 
 
 
 
(p)  Part XXX of this Protocol to the Treaty; and (Transparency 
Visits and Undertaking to Treat Personnel of the Other Party with 
Due Respect) 
 
 
 
(q)  Part Ten of this Protocol to the Treaty. (General) 
 
 
 
End text. 
 
 
 
 
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INSPECTIONS 
 
----------- 
 
 
 
¶7.  (S) Lobach reiterated the Russian position that inspections 
could not occur during the provisional application period due to 
the U.S. inability to grant privileges and immunities to Russian 
inspectors.  Thus, Russia could not accept the U.S. proposal, which 
provided for transparency visits by each side and an obligation by 
the host country to "treat with due respect" the personnel of the 
other side and "take all appropriate steps to prevent any attack on 
the person, freedom, and dignity of such persons."  Highsmith noted 
that the sides had discussed this issue extensively, and each 
understood the other's position. 
 
 
-------------- 
 
COUNTING RULES 
 
-------------- 
 
 
 
¶8.  (S) Highsmith presented the U.S. position that paragraphs 3, 4, 
6, and 7 of Article III needed to be included because they detailed 
the rules that guide the content of the database.  Lobach responded 
that he would present the U.S. position to the experts on the 
Russian side. 
 
 
 
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NEW KIND OF SOA AND THE BCC 
 
--------------------------- 
 
 
 
¶9.  (S) Lobach argued that the inclusion of Paragraph 2 of Article 
V would be redundant because both sides had already agreed to 
provisional application of Article ((XIV))1((XIII))2 (Bilateral 
Consultative Commission (BCC)), subparagraph (c) which provides 
that the BCC is established to "resolve questions relating to the 
applicability of provisions of this Treaty to a new kind of 
strategic offensive arm."  Highsmith responded that the U.S. side 
would consider the Russian position.  Highsmith asked Lobach if he 
found anything harmful in including Paragraph 2 of Article V. 
Lobach commented that he personally could see logic in the U.S. 
position to include Paragraph 2, but noted that the Russian aim for 
provisional application was to keep the list of provisions short. 
They did not want Part VIII to give the appearance that the two 
sides were provisionally applying the entire treaty.  They believed 
that this would create a disincentive to proceed promptly with 
ratification. 
 
 
 
------------------------- 
 
CONVERSION OR ELIMINATION 
 
------------------------- 
 
 
 
¶10.  (S) Highsmith explained the rationale for provisionally 
applying Paragraphs 1, 2, 3(a) of Article VI (Conversion or 
Elimination (CorE)) by noting that if they were not applied, the 
sides would be free to convert and eliminate in a way of their own 
choosing during the time between signature and ratification. 
Highsmith explained that these paragraphs were included to protect 
against a potential dispute arising upon EIF over whether a Party's 
converted or eliminated SOA was legitimately outside the scope of 
the treaty.  Lobach mentioned he recommended to his delegation that 
it would be reasonable to include CorE provisions in the 
provisional application list.  However, he said that at that time 
the Russian delegation was not interested in the CorE proposal.  He 
 
 
said he would raise the issue again, however he also noted that 
inclusion of the paragraphs (and the CorE part of the Protocol) 
would work against the Russian interest in keeping the provisional 
application list short.  (Begin comment:  The Russian desire to 
keep the provisional application list short was a consistent theme 
during the meeting.  End comment.) 
 
 
 
-------------------------- 
 
DATABASE AND NOTIFICATIONS 
 
-------------------------- 
 
 
 
¶11.  (S) Lobach said the Russian side might be able to make changes 
to its provisional application proposal as it related to the 
initial exchange of data.  He noted that Paragraph 2 of Section I 
of Part Two provides for the initial data exchange no later than 45 
days after signature and hence should be provisionally applied. 
Lobach also noted that, by the same logic, the Russian side might 
approve the inclusion of Paragraph 3 of Section 1 of Part Two, 
which requires the provision of certain site diagrams within 45 
days after signature.  Lobach concluded that Paragraphs 6, 7 and 8 
regarding geographic coordinates would not be included in the 
Russian proposal, as geographic coordinates are specifically 
excluded from the initial exchange of data (paragraph 2(a)). 
 
 
 
¶12.  (S) Lobach said many questions concerning Article VII also 
applied to Part Two of the Protocol.  He said that if the parts of 
Part Two requiring provision of data and site diagrams 45 days 
after signature were included in provisional application, then the 
corresponding treaty text in Article VII could also be 
provisionally applied.  Lobach expressed uncertainty regarding 
Article VII in its entirety.  He said Paragraph 1 might be applied 
(requiring establishment of the database and referring to Part Two 
of the Protocol).  He said his personal opinion was that Paragraph 
2 and Paragraph 3 (regarding notification of changes in the 
database) would not be provisionally applied since the Russian 
position was that the United States and Russia would only conduct 
the initial exchange of data during the provisional application 
period.  Highsmith asked what the sides would do if the provisional 
application period became lengthy and the initial data became 
stale.  Lobach seemed to register this point, but declared he was 
trying to proceed with caution toward provisional application.  He 
also noted that Paragraph 1 of Section II of Part Four of the 
Protocol (notifications) required the Parties to provide data 
current as of EIF no later than 45 days after EIF.  Thus, the 
treaty only required that the initial exchange of data be updated 
as of EIF, not before, so updating cannot be required during the 
provisional application period, which occurs entirely before EIF. 
 
 
 
¶13.  (S) Continuing with Article VII, Lobach said Paragraph 5 might 
be applied provisionally in order to authorize the release to the 
public of the initial exchange of data, and he said he would check 
this point with Russian experts.   Lobach also said that Paragraphs 
6-8 would most likely not be provisionally applied, as they were 
unrelated to the initial exchange of data. 
 
 
¶14.  (S) Lobach stated notifications should not be provisionally 
applied since there would be no database changes to notify.  (Begin 
comment:  The other sections of Part IV will be the topic of future 
discussions.  The outcome will depend in part on whether the 
subjects to which these sections relate (e.g., CorE, new kinds of 
SOA) are applied provisionally.  End comment.) 
 
 
 
------------------------ 
 
NONINTERFERENCE WITH NTM 
 
------------------------ 
 
 
 
¶15.  (S) Lobach noted that the two sides agreed on provisional 
application of most of Article X, but the U.S. proposal excluded 
some paragraphs.  Highsmith agreed to check with the U.S. 
delegation on these paragraphs.  (Begin comment:  One of the 
excluded paragraphs of Article X requires 48-hours notice of the 
departure of solid-fueled ICBMs and SLBMs from production 
facilities; it was not in Article X when the United States tabled 
its proposed Part VIII of the Protocol.  The other excluded 
paragraph requires unique identifiers.  The U.S. position on 
provisional application of this paragraph will be provided to the 
Russian side.  End comment.) 
 
 
 
--------------------------------- 
 
BILATERAL CONSULTATIVE COMMISSION 
 
--------------------------------- 
 
 
 
¶16.  (S) Lobach and Highsmith agreed that Article ((XIII))1((XII))2 
and Part VI of the Protocol would be provisionally applied to 
establish the BCC. 
 
 
 
---------------------------------- 
 
NONSUBSTANTIVE CHANGES TO PROTOCOL 
 
---------------------------------- 
 
 
 
¶17.  (S) Paragraph 2 of Article ((XVI))1((XV))2 provides that the 
Parties may agree to changes in the Protocol "that do not affect 
substantive rights and obligations under the Treaty" without 
resorting to the treaty amendment process.  Lobach raised a concern 
that, because the list of provisions to be provisionally applied 
would be part of the Protocol, the BCC would be able to agree to 
changes in that list and thereby expand (or contract) the scope of 
provisional application.  He also expressed concern about the BCC 
 
 
making changes to the Protocol while it was still subject to 
consideration by the respective legislatures.  Highsmith and Lobach 
agreed to check with their respective sides and also to see if this 
provision was provisionally applied in the expired START Treaty. 
 
 
 
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DEFINITIONS 
 
----------- 
 
 
 
¶18.  (S) Highsmith and Lobach noted that both sides had proposed to 
apply provisionally paragraph 2 of Article I and Part I of the 
Protocol, which relate to the definition of terms used in the 
treaty and Protocol. 
 
 
 
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AGREED STATEMENTS 
 
----------------- 
 
 
 
¶19.  (S) The sides agreed it was premature to discuss the agreed 
statements in Part IX of the Protocol.  They agreed to revisit the 
statements later to determine if provisional application would be 
useful and appropriate. 
 
 
 
¶20. (U) Documents provided:  None. 
 
 
 
¶21. (U) Participants: 
 
 
 
UNITED STATES 
 
 
 
Mr. Highsmith 
 
Ms. Miller (RO) 
 
 
 
RUSSIA 
 
 
 
Mr. Lobach 
 
Ms. Vodopolova 
 
 
 
¶22.  (U) Gottemoeller sends. 
KING