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:
Germany | 7
|
Turkey | 6 |
US | 3 |
France | 2 |
Norway | 2 |
Canada | 2 |
Spain | 1 |
Denmark | 1 |
Greece | 1 |
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 Tanks | 560 |
Armoured Combat Vehicles | 2,361
|
Artillery | 441 |
Combat Aircraft | 502 |
Attack Helicopters | 254 |
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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