Select Committee on Defence Minutes of Evidence


Supplementary joint memorandum submitted by the Ministry of Defence and the Foreign and Commonwealth Office

What are the grounds under which states can refuse inspections?

  1.  The grounds under which states may refuse inspections differs according to the type of inspection.

  2.  With regard to SectionVII (Declared Site inspections), paragraph 1 of Section VII of the Protocol states that requests to inspect declared sites shall not be refused and or delayed other than by reason of force majeure (Section VI paragraph 1 of the Protocol), or because the inspecting State Party has exceeded the maximum number of inspections allowed under the Protocol.

  3.  With regard to Section VIII (Challenge Inspections within Specified Areas), paragraph 4 of the Protocol does give the inspected party the right to refuse challenge inspections within specified areas, and it does not limit the grounds on which this must be based. The inspected State Party must however, inform the inspection team within two hours after the designation of a specified area whether the inspection request will be granted.

  4.  The term force majeure is not further defined in the Treaty, although it is generally understood to mean "problems, preventing an inspection or visit, which are beyond the reasonable control of the State Party and which could not have been avoided by the exercise of due care". An example of force majeure might be severe weather conditions preventing travel to the inspection location. Additionally a state might declare force majeure under circumstances when the security of the inspecting team could not be guaranteed. Under paragraph 7 of Section VI of the Protocol, the inspected State Party shall be responsible for ensuring the safety of the inspection team and transport crew members, from the time they arrive at the point of entry until the time they depart the territory of the inspected state. Declarations of force majeure must be explained through diplomatic or other official channels giving the reasons for delay or refusal for the inspection to take place.

  5.  The refusal of an inspection on the grounds that the permitted inspection quota has been exceeded can apply to both Section VII (declared site) and Section VIII (challenge) inspections. Each state has a "passive declared site inspection quota", which means the total number of inspections of objects of verification (OOVs) that the state shall be obliged to receive within a Treaty year at declared sites. For the current CFE Treaty the passive declared site quota is calculated as being 15% of the number of OOVs declared in the annual data exchange of information. For the Adapted Treaty the passive quota will be based on 20% of OOVs. Similarly each state has a "passive challenge inspection quota" which limits the number of challenge inspections under Section VIII of the Protocol that each State Party shall be obliged to receive.

  6.  With regard to inspections under Section IX of the Adapted Treaty (Designated Area Inspections), paragraph 2 of the Protocol says that this category of inspection cannot be refused, although grounds for refusal under force majeure would still apply. However, there would be no grounds for refusal as a consequence of inspection quota limitations because no annual quota will be set for Section IX inspections. Section IX inspections can only take place when a States territorial ceiling is exceeded as a result of a temporary deployment or exercise.

Why did the Bill as presented to the House of Commons not carry the Human Rights certificate?

  7.  The Bill was not presented in the Commons with the European Human Rights Certificate due to an administrative error. We ensured that a written Ministerial statement was made as soon as possible after the Secretary of State signed the certificate.

What rights do private owners/operators have to refuse access to inspectors, and how will these rights change under the Adaptation of the CFE Treaty? What rights does the JACIG team leader have to stop inspectors forcing their access rights to privately owned/operated facilities, and where are these set out in Treaty documentation?

  8.  The Secretary of State has signed a statement confirming that he is confident that the Arms Control and Disarmament Bill is compatible with the ECHR. Rights of entry to private land were provided for Section VIII (Challenge) inspections under the Arms Control and Disarmament (Inspections) Act 1991. But the 1991 Act did not provide rights of entry for Section VII (Declared Site) inspections since at that time the growth and extent of private involvement in declared sites was not foreseen.

  9.  Section 2 of the 1991 Act provides that where a request for an inspection has been made under the Protocol and has been granted by the UK Government, then the Secretary of State may issue an authorisation under Section 2 of the Act in respect of that inspection. It is that authorisation which gives the inspectors and their escort team the right to enter any premises covered by the authorisation.

  10.  Section 2(7) of the 1991 Act provides that the occupier of any premises which is the subject of a Section VIII inspection can ask for a copy of the authorisation. In addition:

    (a)  it is a criminal offence for them to refuse wilfully or to obstruct the conduct of an inspection;

    (b)  a police constable can give assistance to the escort team to facilitate the conduct of the inspection and it is a criminal offence to refuse to comply with a request made by a constable for that purpose;

    (c)  Section 2(8) makes clear that the inspection cannot be delayed or obstructed by raising arguments about the validity of the authorisation; and

    (d)  According to Section 4 of the Act the powers of entry provided for in Section 2 apply to private interests in Crown land. So if a private company operates a business on Crown land under a lease or licence from the Crown, the rights of entry apply to that part of the land covered by the lease or licence.

  11.  Assuming that the amendment Bill goes through in its current form the amendments will extend the application of this section to other kinds of inspections (ie it will apply not just to challenge inspections but also to Section VII (declared site) and Section IX (designated area) inspections under the Adapted Treaty).

  12.  With regard to the rights of the JACIG team leader to stop inspectors forcing their access rights to privately operated facilities, during the course of any inspection, the JACIG team leader may declare a room, building or facility to be a "sensitive point". The term "sensitive point" is defined in Section 1 paragraph (P) of the amended Inspection Protocol as being any equipment, structure or location which has been designated to be a sensitive point by the inspected State Party through the escort team. Designation can wait until the inspection team is actually carrying out the inspection. The effect of a sensitive point is the same whatever kind of inspection, as the provisions are contained in Section VI of the Protocol which applies to all categories of inspections. Para 33 of Section VI provides that the escort team have the right to deny access to sensitive points but they must declare whether any relevant Treaty Subject equipment is located there. These procedures are set out in the Protocol on Inspection, Section VI, Paragraphs 28 and 29 in original CFE Treaty (Paragraphs 31 and 32 in Adapted CFE Treaty).

  13.  It should be emphasised, however, that the intention underlying the inspections is to permit full and unobstructed access, and so discretion should be used when designating sensitive points, where operational security is an issue, or similarly under circumstances where force majeure might be applied to refuse an inspection.

How many of the 94 "declared sites" have privately owned/operated facilities or property?

  14.  All the 94 Declared Sites (DS) are on MoD or Federal German owned property.

  All of the DS have some sort of contractors on them, predominantly providing multi-activity contracts ranging from catering services, NAAFI shops and clubs, and ground and building maintenance. There are also specialist activities such as vehicle and aircraft servicing, simulator support, supply, storage and logistics, fire and crash rescue, range and targetry, and medical and dental services.

  15.  Where required by the type of service contracted, the MoD supplies contractors with facilities on site to carry out their contract. This is done by a lease, hire, loan, encroachment or gratis arrangement depending on the contract. These facilities range from single room office space, to buildings, aircraft hangers, storage sheds to hard standing and open spaces. In some cases contractors erect their own structures, mainly of the portable variety, to carry out their contracts.

  16.  The majority of contractor sites and facilities do not have doors that are two metres in width or wider, and thus they are not inspectable under the Treaty.

Have any private owners/operators expressed any misgiving about the access rights afforded by the current and Adapted Treaties?

  17.  Since the entry into force of CFE Treaty there have been 192 declared site Section VII inspections and 4 Section VIII challenge/specified area inspections of UK forces. As far as can be ascertained there have been no reports of any instances of refusal of access to civilian owned/operated sites or facilities. In addition to live inspections, exercises are routinely conducted with representation from civil police forces. It is normal practice for the civil police accompanying the Joint Arms Control Implementation Group (JACIG) escort team to make first contact with civilian owner/operators and, having explained the nature of the exercise, to attempt to be granted a "consensual search". Only in the event of failure to gain the consent of the owner/operator would the civil police use the search warrant authorised in pursuit of the Act.

Since the signing of the Adaptation Agreement in 1999, how many inspections have been undertaken (and how many refused) in the Flank Zone, by each inspecting state?

  18.  Since the signing of the Adaptation Agreement, nine NATO nations have conducted a total of 25 inspections into the Adapted Flank Zone. Of these, nine inspections were conducted in the Leningrad Military District (Northern Flank) and the remaining 16 took place in the North Caucasus Military District (Southern Flank). The breakdown by inspecting state is as follows:
Germany7
Turkey6
US3
France2
Norway2
Canada2
Spain1
Denmark1
Greece1


  19.  Within this period Russia refused three inspections into the Southern Flank. These were two Section VII (declared site) inspections notified by Turkey in June 2000 and June 2001, and a Section VIII (challenge inspection) notified by Germany in July 2000. In each case Russia permitted both Germany and Turkey to inspect alternative sites to those originally selected.

  Two of the three alternative sites were in the Southern Flank. Additionally, the German Section VIII inspection went ahead in July 2001 to the area originally requested by Germany in the previous year.

  20.  The UK has not conducted any inspections into the Adapted Flank since signing the Adaptation Agreement; the last inspection into the Adapted Flank by a UK team was a Section VIII Specified Area inspection to the Stavropol area in May 1999. However, the UK has conducted six inspections into the areas removed from the Original Flank area (Pskov, Volgograd, Astrakhan Oblasts and part of the Rostov Oblast).

  21.  For completeness, and although Georgia is not technically part of the Revised or Adapted Flank area, a UK inspection team attempted a CFE inspection in June 2001 into Gudauta which is located within the separatist area of Abkhazia, just before the official closure of Gudauta as a declared site. The authorities in Georgia said they were unable to guarantee the safety of inspecting teams or to deliver them to Gudauta, and hence the inspection was aborted on safety grounds.

In the previous Committee's inquiry in 2000, the MoD provided information on UK holdings of tanks, armoured combat vehicles, artillery, attack helicopters and combat aircraft, as at January 2000 (see Defence Committee's Twelfth Report [HC 295], page 22). The Committee would be grateful for updated figures on UK holdings against these categories, for January 2003 if possible.

  22.  The updated figures as at 1 January 2003, and as notified in the UK's CFE Information Exchange pursuant to the Protocol on Notifications and Information Exchange, are as follows:
Main Battle Tanks560
Armoured Combat Vehicles2,361
Artillery441
Combat Aircraft502
Attack Helicopters254


The Committee also asked for copies of key NATO and OSCE documents which encompass judgements on compliance with the original and Adapted treaties, and any recommendations made by those bodies aimed at securing compliance.

  23.  The UK Government is not in a position to release the NATO documents requested by the Committee since these documents are classified and they are not the sole property of the UK Government.

  24.  The UK Delegation to the OSCE has furnished the Conclusions of the Second CFE Review Conference held in 2001 (copy enclosed). This report covers, inter alia, implementation issues raised by States Parties for further consideration in the JCG (as detailed at paragraph 4 etc of the document). In practice the JCG delegate this task to their Treaty Operation and Implementation Working Group (TOI WG) who, we understand, are still dealing with those matters raised at the Review Conference. It is our impression that the TOI's role tends to be more philosophical than judgmental.

  25.  It is rare for a compliance issue resulting from a CFE inspection to be raised to the JCG Plenary. Most implementation issues are of a routine nature, or relate to relatively minor technical points noted during the course of the inspection, and reported in the relevant inspection report. Often these stem from differing national interpretations of the Treaty and thus there is a recurring theme in some categories on "non-compliance." For implementation issues of a more serious nature, these would in the first instance be dealt with bilaterally between the States Parties involved. Failure to resolve the issue bilaterally could result in the matter being referred either to NATO who might form an Alliance position, or to the JCG for consideration by the TOI WG as described above.


 
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