ARTICLE-BY-ARTICLE ANALYSIS OF THE PROTOCOL ON THE JOINT COMPLIANCE AND INSPECTION COMMISSION
STRUCTURE AND OVERVIEW OF THE PROTOCOL
bbbbb The Joint Compliance and Inspection Commission Protocol (the Protocol) consists of a preamble and eight sections. As with virtually all other recent arms control agreements, the Parties have established by-laws" for the operation of a forum for discussing issues that bear upon compliance with Treaty provisions and their implementation. As the preamble to this Protocol states, the enabling provision for the forum created in START, the Joint Compliance and Inspection Commission (JCIC), is Article XV of the Treaty.
bbbbb The JCIC Protocol is modeled on other arms control for a, most directly on the by-laws for the Special Verification Commission (SVC) as set forth in the Memorandum of Understanding to the INF Treaty Regarding Procedures for the Operation of the Special Verification Commission ("the SVC Memorandum"). However, the Parties have learned from their experience in the SVC and other arms control compliance bodies and have introduced several innovations designed to enhance the responsiveness and efficiency of the JCIC. In addition, recognizing the complexity of START implementation and the need to provide for procedures so that the Treaty implementation can begin as soon as the Treaty enters into force, the Parties agreed in the Protocol that the JCIC will meet prior to entry into force. The tasks before the JCIC in this period of provisional application are discussed in the analysis of Article XV of the Treaty.
SECTION I - COMPOSITION OF THE COMMISSION
Section I provides for the composition of the delegations sent to represent each Party in the JCIC. Paragraph 1 requires the naming of the Commissioner and the deputy Commissioner within 30 days following signature of the Treaty: the U.S. Commissioner is Ambassador Steven E. Steiner; his deputy is Mr. T.R. Koncher from the Department of Defense. The USSR has named Gennadiy Shabannikov as its Commissioner; his deputy is Colonel Anatoliy Ivanovich Lukyanov. Although there are no special provisions for the convening of the first session of the JCIC, this paragraph, together with the provisional application provisions contained in paragraph 2 of Section VIII, indicate that the JCIC needs to meet as soon as possible to consider the range of issues for consideration by the Parties before entry into force. Paragraph 1 of Section I is similar to Section II of the SVC Memorandum, except that Memorandum had no 30-day time requirement.
bbbbb Paragraph 2 of this Section sets out the right of each Party to be represented by the Commissioner and Deputy Commissioner, or their alternates, as well as members, advisors, and experts. This paragraph follows closely Section IV of the SVC Memorandum, and like the SVC Memorandum, it also explicitly provides for the convening of the JCIC without the participation of the Commissioner and Deputy Commissioner. For the United States, the term members" means those officials designated to represent an agency of the federal government.
bbbbbParagraph 3 of this Section follows the precedent of the second sentence of Section VI of the SVC Memorandum in that it provides for the head representative of each of the Parties alternately to preside over" or lead the meetings during a round of the Commission. In practice, this will mean that the Party hosting the meeting at its mission will preside over the meeting.
bbbbb Paragraph 4 of this Section follows the precedent of the second paragraph of Section IV of the SVC Memorandum which allows the Commission to constitute working groups.
SECTION II - CONVENING A SESSION OF THE COMMISSION
Section II of the Protocol provides the mechanism for convening a session of the Commission. Paragraph 1 sets out the fundamental rule, also contained in Section III of the SVC Memorandum, that the Commission meets upon request of either Party. This requires that a Party attend a meeting if the other Party requests one, and thus makes it more difficult for a Party to avoid discussion of an issue that is important to the other Party. Paragraph 1 introduces a 14-day deadline to respond to such a request. This innovation is intended to contribute to JCIC responsiveness.
bbbbb Paragraph 1 also defines the content of requests and responses for a meeting of the JCIC: the questions that a Party intends to raise; the name of its head representative; and the proposed or accepted date and location for the convening of the session. Because of the strict two-week deadline for responding to a request to convene, paragraph 1 permits the Parties to submit additional questions in the intervening period until the session is convened.
bbbbb Paragraph 2 of this Section provides that a session be convened as soon as possible after receipt of the response. This is similar to the first sentence of Section VI of the SVC Memorandum.
bbbbb Paragraph 3 of this Section also is similar to Section VI of the SVC Memorandum in that it provides for the Commission to meet in Geneva, Switzerland, or, as appropriate, in another place agreed by the Parties. The sides agreed in formal statements exchanged during the final START plenary meeting that if the JCIC were to meet on the territory of either Party, the question of settlement of costs for such a session would have to be resolved prior to the convening of the session. (This is because the host Party to such a meeting might provide goods or services for which reimbursement could be appropriate.)
bbbbb Paragraph 4 of this Section permits the Commissioner or Deputy Commissioner to communicate with the Commissioner of the other Party in order to clarify any unclear situations or to resolve questions. This provision is similar to Section VIII of the SVC Memorandum which has been invoked on several occasions to facilitate direct communication of an issue.
SECTION III - CONVENING A SPECIAL SESSION OF THE COMMISSION
bbbbbSection III of the Protocol has no precedent in recent arms control agreements. This section provides for the convening of a special session of the JCIC to address an urgent concern relating to compliance with the obligations of the Treaty and introduces the concept of a visit with special right of access" to resolve the concern. Such visits are the rough equivalent of what is sometimes referred to as a right-of-refusal suspect site inspection regime.
bbbbb Paragraph 1 requires the requesting Party to, at a minimum, communicate the nature of the concern, including the kind and type of strategic offensive arm involved, the name of the head representative, and the proposed date and location for the session. The requesting Party may also propose a specific method for resolving the concern. The Parties specifically contemplate that such a method may include, if the Parties agree, a visit with special right of access to the facility or location where, in the opinion of the requesting Party, the activity that caused the concern occurred.
bbbbb The Party receiving such a request must respond no later than seven days after receiving the request, in accordance with paragraph 2 of this Section. Although the responding Party has the right to propose its own date for the convening of the special session, that date cannot be later than 10 days after the date originally proposed by the requesting Party. The response may also include acceptance of the specific method for resolving the concern, including the special access visit, proposed by the requesting Party, or an alternative proposal by the requested Party designed to resolve the concern. In the case of a special access visit, the requested Party may propose the date, location, and procedures for such a visit.
bbbbb Procedures for special access visits must be agreed on a visit-by-visit basis. Procedures in the Inspection Protocol may be used during such visits. The US objective, in providing the flexibility to agree on different procedures, was to balance verification concerns against the need to provide special protection for sensitive facilities for which requests for special access visits might be received. Paragraph 3 also permits the Parties to agree not to convene the special session if they agree to a special access visit, including its schedule and procedures, or if they agree on an alternative method for resolving the concern.
bbbbb Paragraph 4 provides that either Party may request additional information related to the concern and that responses to such a request will be provided within a week. Responses to such requests may not affect, however, the time for convening of the special session.
bbbbb Paragraph 5 institutes a 30-day time limit for the special session. The intent of this provision is to preclude either side from stalling resolution of an urgent compliance concern" by prolonged JCIC deliberations. There is no time limit on regular JCIC sessions.
SECTION IV - AGENDA
bbbbbSection IV describes the content of the agenda for JCIC sessions. Paragraph 1 states, as does Section V of the SVC Memorandum, that the agenda of a meeting shall consist of the questions included in the requests and responses for the session. Of course, the agenda for the special session is the urgent concern itself. Paragraph 2 provides, as does Section V of the SVC Memorandum, for the right to raise questions that arise immediately preceding or even during a session of the Commission. This paragraph makes clear that consideration of the questions raised during the current session is subject to agreement of the Parties. In case of such agreement, the Parties shall allow sufficient time prior to consideration of the questions for preparation and any changes in the composition of the delegations that are required.
bbbbb Paragraph 3 of this Section provides that a session be convened regardless of the number of questions on the agenda. In other words, the Parties can convene even if there is only one question to discuss. This provision will help the JCIC to avoid a situation that has arisen in the context of the SVC, where the Soviets in the past have resisted convening a single-issue session devoted to the question of arms control implementation costs.
SECTION V - WORK OF THE COMMISSION
bbbbb Section V combines the provisions of Section VII and Section IX of the SVC Memorandum. This Section provides that the work of the Commission shall be confidential, except as otherwise agreed. The results of the work or the agreements of the Commission may be recorded in appropriate documents, which are to be done in both English and Russian. Such documents shall not be confidential, unless otherwise agreed by the Commission.
SECTION VI - COSTS
bbbbb Section VI repeats virtually verbatim Section X of the SVC Memorandum. This Section provides that each Party bear the cost of its participation in the work of the Commission. As noted above, the sides agreed in the final START plenary to resolve the question of costs for a session of the JCIC convened on the territory of either Party prior to the convening of such a session.
SECTION VII - COMMUNICATIONS
bbbbb Section VII provides that all communications pursuant to this Protocol be provided through the Nuclear Risk Reduction Centers, established by the Agreement Between the United States of America and the Union of Soviet Socialist Republics on the Establishment of Nuclear Risk Reduction Centers of September 15, 1987.
SECTION VIII - ADDITIONAL PROCEDURES AND PROVISIONAL APPLICATION
bbbbb Section VIII addresses the method of agreement on additional JCIC procedures and provisional application of the JCIC Protocol prior to entry into force of the Treaty. Paragraph 1, like Section XI of the SVC Memorandum, allows the Parties to agree upon additional procedures governing the operation of the Commission.
bbbbb Paragraph 2 provides for the provisional application of the Protocol so that the JCIC can meet to resolve questions in the period before entry into force of the Treaty. The Parties have agreed that the Treaty and its associated documents enter into force when the Parties exchange instruments of ratification. Therefore, in accordance with Articles 24 and 25 of the Vienna Convention on the Law of Treaties which the United States recognizes as codifying existing international law on the subject, the Parties need to provide or agree on the provisional application of provisions that will be in effect prior to entry into force.
bbbbb The use of this form for provisional application is virtually identical to that used in Section IV of the Telemetry Protocol and to the attestation of the Memorandum of Understanding. Moreover, this form follows closely that of the Protocol on the Provisional Application of Certain Provisions of the Treaty on Conventional Armed Forces in Europe of November 19, 1990.
bbbbb Paragraph 2 states that Article XV of the Treaty (which establishes the JCIC and its charter) and all the provisions of this Protocol will be provisionally applied from the date of signature.
bbbbb Paragraph 2 also sets forth that these three parts of the Treaty are to apply for a 12-month period, unless prior to that time a Party informs the other Party of its decision to terminate the provisional application of any of these parts, or unless the Treaty enters into force. Of course, once the Treaty enters into force these provisions have the same status as all other provisions. The 12-month limit is necessary to ensure that provisional application not continue in perpetuity. This paragraph also provides the Parties with the option to extend the period of provisional application for additional periods, subject to the same limitations that initially apply.
bbbbb Paragraph 3 of this Section provides that such provisional application occur in light of and in conformity with the other provisions of the Treaty. The Parties are assured that the conduct of JCIC sessions convened before entry into force will conform with the method in which they will be conducted after entry into force.
bbbbb A final provision, like those in the other Protocols, provides that, pursuant to subparagraph (b) of Article XV of the Treaty, additional measures can be agreed upon by the Parties with respect to this Protocol to improve the viability and effectiveness of the Treaty. The Parties agree that, if changes need to be made in the Protocol that do not affect substantive rights or obligations under the Treaty, then such changes as are agreed upon shall be made within the framework of the Joint Compliance and Inspection Commission (JCIC), without resorting to the amendment procedures set forth in Article XVIII of the Treaty.
bbbbb Pursuant to Article XVII of the Treaty, the Protocol is deemed to be an integral part of the Treaty.