US embassy cable - 04THEHAGUE2518

UNCLAS SECTION 01 OF 04 THE HAGUE 002518 
 
SIPDIS 
 
STATE FOR AC/CB, NP/CBM, VC/CCB, L/ACV, IO/S 
SECDEF FOR OSD/ISP 
JOINT STAFF FOR DD PMA-A FOR WTC 
COMMERCE FOR BIS (GOLDMAN) 
NSC FOR JOECK 
WINPAC FOR LIEPMAN 
 
E.O. 12958: N/A 
TAGS: PARM, PREL, CWC 
SUBJECT: CHEMICAL WEAPONS CONVENTION (CWC) - OCTOBER 1 
CONSULTATION ON RABTA CONVERSION 
 
 
This is CWC-115-04. 
 
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SUMMARY 
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1.  (U) At the October 1 consultations on the Libyan proposal 
to make a technical change to permit conversion of the Rabta 
facility, the overwhelming number of attendees voiced strong 
support.  A limited number of "usual suspects" raised 
questions, in particular Pakistan, but also Russia, India and 
Iran, primarily questioning the legal basis for the proposal. 
 While it should be possible to overcome these concerns, it 
will require significant work in the Hague and in capitals in 
the run-up to the Oct. 12-15 Executive Council (EC) session 
where a decision must be taken regarding this proposal.  End 
Summary. 
 
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STATEMENTS FROM THE OPCW LEADERSHIP 
----------------------------------- 
 
2.  (U) On October 1, at the prompting of the EC Chairman and 
other States Parties, informal consultations, chaired by the 
Brazilian Ambassador, were held to discuss the Libyan 
proposal to make a technical change to the CW Convention that 
would permit Libya and future States Parties to seek 
conversion of former CW production facilities for purposes 
not prohibited by the CWC.  The Technical Secretariat (TS) 
led off the consultations with useful statements by the 
Director-General (DG), Legal Advisor, Director of 
Verification, and Director of the Policy-Making Organs. 
 
3.  (U)  DG Pfirter made a forceful statement emphasizing his 
"active engagement" in preparing the positive TS evaluation 
of the proposal, the conclusions of which were "unequivocal." 
 He emphasized that the proposal is "clearly a technical 
change," in that it does not alter the basic principles or 
rights of the CWC and does not impact current conversion 
activities (i.e. Russia), and approving the proposal was 
needed to remove a disincentive for others to join.  The DG 
stressed that the EC must make a recommendation at its 
upcoming session to either approve or reject the proposal, 
and could not defer the decision to the November Conference 
of States Parties.  (Comment:  This last point was made at 
the prompting of the U.S. and UK to head off an expected 
Pakistani proposal to send the issue to the CSP.) 
 
4.  (U) The Legal Advisor (Ambassador Onate), taking a more 
nuanced position than the DG and sticking closer to the 
actual text of the TS evaluation, noted that the CWC does not 
clearly define the difference between a formal amendment and 
a technical change, and that it was left to, and the 
responsibility of, the EC to determine the "viability" of the 
proposal (i.e., does it satisfy the criteria for a technical 
change contained in Article XV, para 4).  Nevertheless, Onate 
reiterated the characteristics of the proposal that would 
suggest the technical change process is appropriate.  He also 
stated that pursuing the proposed fix through the technical 
change process was consistent with international law and the 
principle of "dynamic interpretation" of treaty provisions. 
 
5.  (U) The Director of Verification (Horst Reeps) affirmed 
that the proposed technical change would not change the 
verification activities related to CWPF conversion, and thus 
pose no risk to the object and purpose of the CWC in this 
area.  The Director of Policy-Making Organs (Sylwin Gizowski) 
stated that the initial steps of the technical change process 
have been followed in an appropriate manner and that the EC 
is obligated to examine the proposal and make its 
recommendation at its next session.  He noted that this 
process had been previously used in 1999 concerning saxitoxin. 
 
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STATEMENTS OF SUPPORT FOR LIBYA 
------------------------------- 
 
6.  (U) There was a significant turn out from States Parties, 
with no fewer than 43 delegations in attendance.  The Libyans 
made a brief opening statement emphasizing the need to make a 
change that addresses the strict time limit on completing 
conversion contained in paragraph 72, and that the proposal 
was important for both humanitarian reasons and to promote 
universality.  Nineteen delegations, from a broad geographic 
distribution, made statements offering clear support for the 
proposed technical change, specifically:  Algeria 
(co-sponsor), Morocco (co-sponsor), Sudan (co-sponsor and 
speaking for Africa Group), Tunisia (co-sponsor), Japan 
(co-sponsor), South Korea, Czech Republic, Poland 
(co-sponsor, non-EC), Argentina, Brazil, Austria (non-EC), 
Italy (co-sponsor), Netherlands, Norway, Spain, Switzerland 
(non-EC, WEOG coordinator), Turkey (co-sponsor, non-EC), UK 
(co-sponsor), and the U.S. (co-sponsor). 
 
7.  (U) (Note: While offering strong support for making a 
technical change, Amb. Vogelaar of the Netherlands made an 
unhelpful query about the desirability of having a firm time 
limit in the text for States Parties to submit conversion 
requests -- current text leaves it up to the EC to decide. 
After the meeting del rep explained why such a time limit 
would not be needed in practice, but more importantly raised 
the concern about possibly opening up the proposal for 
redrafting and giving the impression of lack of unity within 
the WEOG.  Additionally, the Dutch, current President of the 
EU, did not make an expected statement about EU support for 
the technical change, though Vogelaar offered that he is in 
the process of clearing a formal statement for the upcoming 
EC.) 
 
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STATEMENTS OF CONCERN OR SKEPTICISM 
----------------------------------- 
 
8.  (U) A handful of other delegations made less helpful 
interventions, ranging from vague to outright hostile. 
 
--Pakistan:   The Pakistani rep (Malik Azhar Ellahi) made the 
most negative statement regarding the technical change.  He 
prefaced his statement by saying that Pakistan supports the 
purpose of the proposal (to permit conversion) and that 
Islamabad is still considering the proposal in light of the 
recently issued evaluation from the DG.  However, there are a 
number of "questions" that need to be answered.  He opined 
that many States Parties appear to be moving forward as if 
the final decision is "pre-judged" and that further 
discussions would be necessary.  Based on clearly uninformed 
analysis, he questioned whether "conversion" was even 
necessary given activities taken prior to Libya joining the 
CWC to shift the Rabta facility to peaceful production.  In a 
crass effort to divide North/South support for the proposal, 
he requested assurances that the proposed drug production, 
given the involvement of western companies (e.g., Italian 
firms), will be driven by altruistic purposes, not profit, in 
effect questioning the credibility of Libya's stated 
intentions.  The core of his argument was that the proposed 
change is more than a "technical change" and that another 
process should be used to pursue it.  Contrary to the 
assertions of the DG, the Pakistani delegate insisted that 
the proposal impacts the basic object and purpose of the CWC 
by changing a deadline that was established for specific 
reasons by the drafters of the CWC.  He offered that seeking 
a formal amendment would be difficult and not desirable for 
most States Parties, and so raised the possibility (without 
appearing to recognize the obvious contradictions in his 
position) that other "novel ways" to address this issue could 
be found.  However, he offered no specifics. 
 
--Russia:  The Russian delegation expressed support for 
permitting Libya, and any future States Parties, to convert 
former CWPFs, but their "initial analysis" raised the 
question of whether the technical change process is 
appropriate since it modifies a treaty deadline, as well as 
procedures for establishing a deadline for submitting the 
conversion request (Part V, paras 65-66).  Clearly not 
wanting to push for an amendment, the Russians recommended 
that other options be considered, including the possibility 
of some kind of decision by the Conference short of an 
amendment that would allow Libyan conversion.  The Russians 
indicated that these discussions, along with the recent DG 
paper would be taken into account as Moscow develops its 
"final position."  (Note:  The Russian Ambassador, who was 
not at the consultations, previewed the Russian position in a 
cordial bilateral meeting on the previous day at the Russian 
Embassy.  He gave the impression that the Russian position 
was still in flux, with some division 
of legal opinion in Moscow and that the DG paper had not been 
factored in yet.) 
 
--India:  The Indian representative prefaced his statement by 
stating clearly that the proposal was still being considered 
in capital and that India "sympathizes" with African states' 
interest, but then proceeded to make a series of unhelpful 
comments.  The del rep said he "needed to be convinced" that 
this was in fact a "technical change," and asked for clearer 
views from the TS, as well as the thinking behind the 
original CWC drafters establishing a six-year deadline.  He 
also noted that the technical change for saxitoxin was less 
complex than this, but nevertheless took almost two years to 
finalize.  He also (incorrectly) asserted that under this 
process consideration stops with the EC, and that the CSP 
should take a decision.  (Note:  After EC approval, all/all 
States Parties are given 90 days to raise an objection, 
which, if made, sends the issue to be taken up by the CSP.) 
 
--Iran:  The Iranian delegation stated that they support the 
objective of the proposal and that the issue is still being 
considered in capital.  He believed that making any sort of 
formal change to the CWC should be avoided and wanted greater 
assurances that the technical change process is the correct 
one for this instance.  He offered an alternative that in 
effect amounted to an "interpretation" of the CWC, namely 
Article V, para 13, and Part V, paras 65-66, that would 
override the restriction in Part V, para 72. 
 
--Mexico:  The Mexican delegation indicated the proposal was 
still being considered in capital, but they supported its 
intention, and viewed the paper with a "positive eye." 
 
--Germany:  Despite assurances provided by the German PermRep 
the previous day, the visiting official from Berlin (Peter 
Beerwerth) offered a lukewarm statement of support, 
indicating that the proposal was still being considered in 
capital.  After the meeting, Beerwerth said that they did not 
want to get out too far ahead until it had been presented to 
"ministers."  (Note:  Beerwerth may have been partially 
motivated by previous delays in Libya paying compensation for 
the bombing of the LaBelle disco, and appeared unaware of 
media reports that the initial payment had been made the 
previous day.) 
 
9.  (U) Prompted by questions from the U.S. and UK about the 
existence of "other options," the Legal Advisor could see no 
other legal alternative that would permit conversion other 
than those provided for in Article XV, namely either a formal 
amendment or a technical change.  He reasserted that it is 
ultimately up to the EC to determine if the technical change 
process is appropriate.  Specifically in response to Iran, he 
voiced the concern that their idea of trying to interpret 
away the problem would set a dangerous precedent. 
 
10.  (U) States Parties that attended, but made no comments: 
Kenya (co-sponsor), Nigeria, South Africa (co-sponsor), 
China, Malaysia, UAE (non-EC), Bosnia (non-EC), Bulgaria 
(non-EC), Romania (non-EC), Cuba, Peru, Canada (non-EC), 
Denmark (non-EC), Finland (non-EC), New Zealand, and Sweden 
(non-EC).  (France was the most notable no-show at the 
meeting.) 
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NEXT STEPS 
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11.  (U) Overall, the consultations went about as expected, 
with strong support offered by many, and usefully flushing 
out questions from the "usual suspects," though all of the 
latter indicated that the proposal is still being considered 
in capital.  Libyan, Italian, UK and U.S. dels agreed that 
aggressive diplomacy in The Hague and in capitals is needed 
in the coming week before the EC to give the proposal the 
best chance of a getting consensus approval at the EC. 
Specifically: 
 
--Pakistan:  the Pakistani rep appears to be "free-lancing" 
on this issue, without specific guidance from capital, as has 
been his habit on previous occasions.  Delegations agreed to 
recommend to capitals that U.S., UK and Italy demarche 
Islamabad, while Libya will raise the issue with the 
Pakistani Embassy in Tripoli.  UK and Libyan dels will work 
with the TS to directly address questions raised by the 
Pakistani del. 
 
--Russia:  the Russian del appears to be working from 
preliminary, but not definitive, instructions from capital. 
Delegations recommend that U.S., UK and Italy demarche 
Moscow, while the U.S. del will continue to follow-up with 
the local del. 
 
--Iran:  the UK and Libya will follow-up with Iranian del, 
with possible involvement of TS. 
 
--India:  because of preparation associated with an upcoming 
India-EU summit, the Indian del has been, and will likely 
continue to be, unable to give this issue much attention. 
Delegations recommend that U.S., UK and Italy demarche New 
Delhi, while the U.S. del will continue to follow-up with the 
local delegation, emphasizing the need for a clear position 
for the upcoming EC. 
 
--Mexico:  The U.S. delegation will follow-up with the 
Mexican del to confirm its position and will inform 
Washington if a demarche to capital is needed. 
 
--Germany:  The U.S. and UK delegations have already 
expressed concern to the German del regarding its lukewarm 
statement, and will continue to do so in the coming week. 
(Note:  A German del rep offered assurances that the FRG will 
"be there for us in the end.")  The U.S. del has informally 
contacted Embassy Berlin to follow-up on the status of German 
deliberations and the UK will formally demarche Berlin. 
 
12.  (U)  Javits sends. 
SOBEL