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Treaty on Open Skies: Article-by-Article Analysis


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SENATE
103D CONGRESS
1st Session

EXEC. REPT.103‑5

TREATY ON OPEN SKIES

AUGUST 2 (legislative day, JUNE 30), 1993.‑Ordered to be printed

Mr. PELL, from the Committee on Foreign Relations, submitted the following

REPORT

[To accompany Treaty Doc. 102‑37]

The Committee on Foreign Relations, to which was referred the Treaty on Open Skies, with twelve annexes, signed at Helsinki on March 24, 1992, having considered the same, reports favorably thereon and recommends that the Senate give its advice and consent to ratification thereof, subject to two conditions and one declaration as set forth in this report and the accompanying resolution of ratification.

CONTENTS


I. Purpose
II. Background 
III. Summary of Open Skies Treaty
IV. Reports of Committees
V. Committee Action
VI. Committee Comments
VII. Entry into Force
VIII. Resolution of Ratification
IX. Article‑by‑Article Analysis
X. CBO Cost Estimate
XI. Appendices

A. Report of Senate Select Committee on Intelligence
B. Report of Senate Armed Services Committee
C. Hearing on the Treaty on Open Skies, with 12 annexes (Treaty Doc. 102‑37)

I. PURPOSE OF OPEN SKIES TREATY

The principal purpose of the Open Skies Treaty is to enhance military openness and transparency by providing each State Party with the right to overfly the territory of other States Parties using unarmed observation aircraft. The premise underlying the Treaty is that if there is greater military openness and transparency, then regional tensions will be reduced, thereby decreasing the probability of conflict. Because the United States already possesses high-quality national technical means of verification, the Treaty is expected to be largely of value to European States Parties, particularly for those nations that do not have access to sophisticated reconnaissance satellites. For such states, the Treaty may serve as a useful confidence- and security-building measure.

II. BACKGROUND

President Eisenhower proposed the first "Open Skies" initiative in 1955, before reconnaissance satellites were available. The purpose of Eisenhower's "Open Skies" was to allow for wide ranging aerial inspections with optical cameras between the superpowers. These aerial inspections would have allowed each side to examine some military facilities in order to give early warning on military build-ups. These inspections would probably have had a deterrent effect, could have reduced "worse-case analysis" assumptions about the other party, and could have established a mutual confidence building measure. First Secretary of the Communist Party Nikita Krushchev strongly rejected Eisenhower's proposal because the Soviets feared that it was a way for Westerner to spy on the closed Soviet society.

With the advent of high quality satellite reconnaissance in the early 1960s, the idea of "Open Skies" was overtaken by technological progress. However, today only the United States and Russia have extensive capabilities to photograph with satellites. Other nations of Europe do not have any significant ability to observe threatening military facilities or activities for their neighbors. Because of these multinational concerns, President Bush proposed a multilateral, rather than a bilateral, Open Skies initiative on May 12, 1989, in a speech at Texas A&M University.

The nations of Europe, and in particular, the new nations of Eastern Europe, appear to support the Open Skies Treaty as a measure to build mutual confidences at this time of transition. Canada has been a leader in the Open Skies negotiations, hosting Open Skies conferences and carrying out trial aerial inspections. In 1991, Hungary and Romania adopted a bilateral Open Skies Treaty which is consistent with the Open Skies multilateral treaty.

The Conventional Armed Forces in Europe (CFE) Treaty contains provisions that grant the basic right to conduct aerial inspections as part of the monitoring of the Treaty, but the Open Skies negotiations were carried out separately from the CFE arena within the framework of the Conference on. Security and Cooperation in Europe (CSCE). It is generally expected that the Open Skies regime will be expanded to the rest of the CSCE nations, and may well be adopted by countries in other regions of the world.

III. SUMMARY OF OPEN SKIES TREATY

The Open Skies Treaty was signed in Helsinki on March 241992,and was submitted to the Senate on August 12, 1992 (Treaty Document 102-37). The Treaty permits a State Party to use unarmed observation aircraft, equipped with a variety of sensors, to overfly the territory of other Treaty participants in accordance with a quota system. PARTICIPANTS

The original 25 signatories of the treaty were the sixteen members of the North Atlantic Treaty Organization (NATO), the five Eastern European members of the former Warsaw Pact, and four former Soviet republics, Russia, Ukraine, Belarus, and Georgia, Because the Treaty was signed after the dissolution of the Soviet Union, issues concerning state succession did not arise, as in the case of the 1990 Conventional Armed Forces in Europe Treaty (CFE) and the 1991 Strategic Arms Reduction Treaty (START). The Kyragyz Republic, another former Soviet republic, subsequently signed the Treaty on February 16, 1993. The Czech and Slovak Republic, an original signatory, separated into two countries on January 1, 1993, and both joined the Treaty. Thus, to date, there are 27 participants in the Open Skies regime.

OBSERVATION AIRCRAFT

At the insistence of the Soviets (and later the Russians), who were concerned that observation aircraft of other nations might contain clandestine sensors, the host (or "observed") nation was given the right to require that its own state aircraft, flight crew, and sensors be used for the overflights. This right came to be known among the Treaty's negotiators as the "Taxi Option." With the exception of Russia and Belarus, most states probably will not invoke the taxi option; rather, they will let the observing party fly its own aircraft after it has been inspected to verify that it does not contain any clandestine equipment. The Treaty also permits an observing party to use the observation aircraft of another State Party. For example, the United States has the option, if it were to so choose and the Canadians were to agree, to use a Canadian observation aircraft to conduct an observation flight over Russia, provided that the Russians were not to invoke the Taxi Option.

SENSORS

The Treaty permits the use of four types of relatively low-technology, low-cost observation instruments:

(1) panoramic and framing cameras;

(2) video cameras;

(3) infrared line-scanners; and

(4) synthetic aperture radars (SARs).

At the insistence of the Soviets (and later the Russians), the resolution capability of all types of sensors is restricted to a level far below that technologically possible. Moreover, the Treaty requires that the sensors be commercially available so that every State Party will have access to the same general level of capability. As a result, the resolution of Open Skies sensors will not even remotely approach that of United States reconnaissance satellites.

The resolution of optical sensors is limited to 30 centimeters. In this regard, resolution refers to the minimum distance on the ground that two objects must be separated in order to be distinguished by the sensor as two different objects. Thirty centimeters of resolution will enable States Parties to recognize and differentiate among large types of military equipment, such as between tanks and trucks. However, the ability to distinguish between Russian tank types is much less likely because they have a similar appearance.

Resolution limits may require complicated adjustments during observation flights. If overflights were to occur at lower altitudes to avoid clouds, for example, the ground-resolution of a given camera could improve. In order to avoid this degree of extra intrusion, the Treaty mandates that different camera-lens combinations with poorer angular resolution must be used at the lower elevations in order to maintain the limit of 30 centimeter ground resolution.

Infrared line-scanning sensors can be used during the day or night to detect heat sources. Their resolution will be confined to 50 centimeters, inferior to that of the optical cameras. The infrared sensors will mainly be operated at lower altitudes. The infrared data might be of some use in targeting on-site inspection sites for a variety of arms control treaties such as CFE and the Chemical Weapons Convention (CWC).

Synthetic aperture radars (SARs) have the capability to operate in all weather conditions and both day and night. The resolution of SARs is restricted to three meters. Because of their relatively poor resolution, they will be able to distinguish only large objects such as railroad cars or mobile missiles in the field.

The States parties have agreed to allow optical cameras initially, and then to phase in the other sensors three years after entry into force of the Treaty. The Treaty provides that the observed party has the right to inspect all Open Skies sensors on board the observation aircraft before the observing party may commence an observation flight over its territory.

OVERFLIGHT QUOTAS

Each State Party under the Open Skies regime is obliged to accept, and is given the right to carry out, an agreed annual quota of observation flights. The quota system is based on the concept of a "passive quota " that is, the total number of annual observation flights by the other States Parties that each State Party is obliged to accept over its territory as an observed party. Each State Party also has an "active quota," that is, the total number of annual observation flights each State Party has the right to conduct as an observing party over the territories of the other States Parties.

A number of general rules are associated with the quota system. First, a State Party’s active quota may never exceed its passive quota; that is, a State Party does not have the right to carry out more observation flights than it is obligated to receive. Second, each State Party has the right to conduct a number of observation flights over another State Party that is equal to the number of observation flights which that other State Party has the right to conduct over it. Third, no State Party may conduct more observation flights over the territory of another State Party than a number equal to 50 percent of its own total active quota, or of the total passive quota of that other State Party, whichever is less.

The annual passive quota for each State Party once the Treaty is fully implemented is set forth below:

—42/year: United States, Russia/Belarus;

—12/year: Canada, France, Germany, Italy, Turkey, United Kingdom, Ukraine;

— 7/year: Norway;

— 6/year: Denmark, Poland, Romania, Benelux (Belgium, The Netherlands and Luxembourg together);

— 4/year: Bulgaria, Greece, Hungary, Iceland, Spain;

— 2/year: Portugal, Czech Republic, Slovak Republic;

According to the Executive Branch, each State Party's passive quota was "loosely scaled to the size of the States Parties."

During the negotiation, the active quota for each participating State Party was also distributed for the first implementation phase of the Treaty (as set forth in Section II, paragraph 1, of Annex A to the Treaty). This phase corresponds to the time period extending from the date of entry into force of the Treaty to December 31st of the following full year of implementation. During that period, the United States will have the right to conduct nine observation flights: eight over the Russian/Belarus group, and one, shared with Canada, over Ukraine. In that same time period, Russia/Belarus will have the right to conduct up lo 26 observation flights, of which four will be over the United States. In this initial active quota distribution, no other State Party was given the right to conduct observation flights over the United States.

Since Georgia and the Kyrgyz Republic did not participate in the negotiation of the Treaty, they were not allocated passive and active inspection quotas along with all the other signatories. This issue will be addressed upon deposit of their instruments of ratification.

COVERAGE

The Treaty will cover the national territories—land, islands, and internal and territorial waters—of all the States Parties, including the United States. This amounts to a land area and adjacent waters extending east from Vancouver to Paris to Vladivostok.

According to the Treaty, observation flights may be restricted only for reasons of flight safety, and not for reasons of national security, The Treaty makes clear, in particular, that a mission plan for an observation flight may allow for the observation of any point on the entire territory of the observed party, including those areas designed by the observed party as ''hazardous airspace" (i.e., areas that are defined to be "prohibited areas," "restricted areas," or "danger areas" in accordance with the Convention on International Civil Aviation).

However, the Treaty does place a number of restrictions on the way in which observation flights may be conducted in order to promote flight safety and restrict opportunities for illicit intelligence collection. First, each observation flight must be conducted in accordance with a strict mission plan (including a flight plan) mutually agreed between the observing party and the observed party and in accordance with International Civil Aviation Organization (ICAO) standards and regulations. The observed party has the right under the Treaty to prohibit an observation flight that is not in compliance with the mission plan or flight plan, ICAO standards or regulations, or any provision of the Treaty. Second, the flight path of the observation flight may not intersect the same point more than once. Third, the observation aircraft may not circle around a single point. Fourth, the observation aircraft must fly a direct route between fixed, mutually agreed points. Fifth, the height above ground level of the observation aircraft may not permit the observing party to exceed the limitation on ground resolution for each sensor.

From the outset, the United States regarded full territorial openness as a necessary condition for the Treaty. Initially, the Soviet Union tried to limit coverage to avoid national security-related facilities. Later, the Soviets agreed to the United States position of full territorial openness, but only upon the condition that the other States Parties would agreed to the "Taxi Option."

LIABILITY

At the insistence solely of Poland, a provision on liability was included in the Treaty, This provision makes a State Party liable to pay compensation to other States Parties, or to their citizens, in the event of damage caused during the implementation of the Treaty. The Polish Government apparently insisted on this provision out of fear that Open Skies aircraft transiting through its territory to conduct observation flights over Russia might crash and cause injury to Polish citizens.

DATA DISTRIBUTION

Data collected from observation flights are not considered to be classified under the terms of the Treaty. However, the Treaty provides that data shall be used exclusively for the attainment of the purposes of the Treaty. Some of the States Parties were concerned that information, if freely available, could find its way into the hands of terrorists, and therefore wished to minimize such a possibility.

The data will be available to both the observing party and the observed party. Moreover, other States Parties will be able to purchase copies of the raw data from the observing party for their own use. While the States Parties have not specified how to ensure that data will be used "exclusively" for the purposes of the Open Skies regime, the only way for the use of such data to be monitored by the United States Government is through classification or exemption from the Freedom of Information Act. The Committee therefore intends to prepare legislation to provide for such an exemption.

PROVISIONAL APPLICATION AND ENTRY INTO FORCE

Certain provisions of the Treaty, mainly dealing with operation of the Open Skies Consultative Commission, were provisionally applied upon signing of the Treaty, i.e., since March 24, 1992. However, the Treaty as a whole will not formally enter into force until twenty signatories deposit their instruments of ratification, and only then if included in those twenty states are the United States, Russia/Belarus, Canada, the United Kingdom, France, Germany, Italy, Turkey, Ukraine, and Hungary. Once in force, the Treaty will be of unlimited duration.

IMPLEMENTATION PHASES

The Treaty will be implemented in various phases relating to both the types of sensors that may be used on observation flights and the allocation of quotas for such flights.

With respect to sensors, the Treaty will be implemented in two phases. The first phase will extend from the date of entry into force of the Treaty to the date of full implementation of the Treaty (i.e., to December 31st of the third year following the year in which the Treaty entered into force). During this phase, the observing party may not use infrared line-scanner sensors. In addition, if the observed party insists on invoking the Taxi Option, then the aircraft that it must supply to the observing party need not be equipped with a synthetic aperture radar (SAR) sensor. Instead, the observed party is required only to provide either a single optical panoramic camera or a pair of optical framing cameras. During the second phase, which begins upon the Treaty's full implementation, all sensor types may be used by the observing party and are required to be made available by the observed party in the event that it invokes the Taxi Option.

With respect to quota allocation, the Treaty is to be implemented in three phases. The first phase will extend from the date of entry into force of the Treaty to December 31st of the first full year of implementation following entry into force. During this phase, States Parties will conduct and accept observation flights in accordance with the active quotas as specified in Section II, paragraph 1, of Annex A to the Treaty. The second phase will extend from the end of the first phase to the date of full implementation of the Treaty (i.e., to December 31st of the third year following the year in which the Treaty entered into force). In this phase, each State Party will be obliged to accept no more than 75 percent of its overall annual passive quota as set in Section I of Annex A. Since the overall annual passive quota for the United States is 42, this means that it will be obligated to accept no more than 31 (i.e., 75 percent of 42) observation flights a year during the second phase. During the third phase, beginning upon full implementation of the Treaty, each State Party must accept observation flights up to its full passive quota.

OPEN SKIES CONSULTATIVE COMMISSION

The Treaty established the Open Skies Consultative Commission (OSCC) to oversee the provisional application and the implementation of the Open Skies regime. Because parts of the Treaty were provisionally applied upon its signature, the OSCC has been in operation since that time. The OSCC consists of a representative from each State Party, meets periodically in Vienna, and operates on the basis of consensus. To date, the OSCC has been primarily concerned with establishing internal working procedures, developing notification formats, dealing with cost issues, and responding to proposals regarding sensors. In this regard, most of the cost sharing arrangements for the overflights have been resolved, but some of these decisions must be formally agreed in the OSCC. Once the Treaty enters into force the OSCC will also become the primary venue for handling any compliance issues that may arise.

COSTS

The annual cost to the Department of Defense for implementation of the Open Skies Treaty, excluding procurement of United States observation aircraft, was approximately $10 millions in FY 92 and approximately $20 millions in FY 93. Anticipated costs in the future include approximately $20-24 millions in FY 97, and approximately $22-28 millions in FY 95. The figures budgeted for FY 96 and FY 94 are $41 millions and $37 millions, respectively. Significantly, these figures do not include one-time costs for acquisition of aircraft and sensors and modifications to aircraft. Nor do the figures include the costs of Treaty implementation to other parts of the Executive Branch, such as Intelligence Community costs (e.g., expenses associated with analyzing data) or costs accruing from United States participation in the Open Skies Consultative Commission.

At present, the Department of Defense anticipates a requirement for the three WC-135 observation aircraft. The aircraft, which are Government furnished equipment, will be modified and equipped for Open Skies at a cost of approximately $64.5 millions. This figure excludes the cost to equip any of the aircraft with a synthetic aperture radar, or the amount spent to date on research and development (RDT&E)—approximately $18 millions to date.

The initial WC-135 observation aircraft will cost approximately $11.5 millions. However, this will only equip the aircraft with one panoramic camera and three framing cameras. It is planned that the first aircraft will be available for operations beginning in October, 1993. The cost to operate and maintain the first aircraft will be approximately $6 millions in FY 93, approximately $6-7 millions in FY 94, and approximately $6-8 millions in FY 95.

The cost to modify the second aircraft for full operational capability (i.e., with a full sensor suite) will be approximately $27.25 millions. The third aircraft, also to be equipped with a full sensor suite, will cost about $25.75 millions (excluding the expense for aircraft not-recurring engineering). The full sensor suite will include one panoramic camera, three framing cameras, two video cameras, one infrared line-scanner, and a synthetic aperture radar. At present, the second and third aircraft have not been modified and equipped. It is anticipated that, if a decision were made to fund and fully equip both follow-on aircraft, they will be available by full implementation of the Treaty, i.e., on or about January 1, 1997. Operational and maintenance costs for these two aircraft will be roughly the same as that for the first aircraft.

The cost to the United States of a passive observation flight (i.e., of an overflight of the United States by another State Party) will be approximately $25,000 to $35,000, if the observing State Party uses its own aircraft. If the United States invokes the Taxi Option, and thus requires the observing State Party to use a United States observation aircraft, the cost to the United States will be approximately $100,000 to $105,000.

The cost to the United States to conduct an observation flight over Russia/Belarus will be approximately $165,000 to $170,000. If the Russians invoke the Taxi Option, and the United States is thus required to use a Russian observation aircraft, the cost will be approximately $90,000 to $95,000 per flight.

IV REPORTS OF COMMITTEES

The Senate Select Committee on Intelligence provided to the Foreign Relations Committee in May the Intelligence Committee's report, "Intelligence and Security Implications of the Treaty on Open Skies."

The Chairman and Vice-Chairman of the Select Committee, Senators DeConcini and Wamer invited the Committee to consider five recommendations:

Recommendation 1: After the first 1-2 years, the United States should not use its full active observation flight quota unless there is a clear likelihood of obtaining significant information through those flights. Unless an environmental sensing package is adopted under Open Skies, only two aircraft should be used for Open Skies flights after the transitional period.

Recommendation 2: The United States should make every effort to use a U.S. observation aircraft and sensors in its Open Skies observation flights.

Recommendation 3: The Senate should add a condition to the resolution of ratification to the effect that the United States shall not agree to Open Skies Consultative Commission approval of any new Open Skies sensor or of one with improved resolution until at least thirty days after notifying interested Committees of the Senate of its intention to do so; such notification shall include an analysis of the legal and security implications of the proposed change or changes.

Recommendation 4: The Executive Branch should institute an outreach program to inform industry about the likely impact of the Open Skies Treaty and to offer appropriate assistance in a safeguarding proprietary information that may be put at risk. Such assistance need not incur major costs to the government and could, if necessary, be user-funded.

Recommendation 5: Congress should consider legislation to create a new b(3) exemption to the Freedom of information Act that would permit the Government to withhold information collected pursuant to the treaty from public disclosure.

The Committee very much appreciated receiving these recommendations and considered them carefully.

With regard to the first recommendation, the Committee concurred in the good sense of limiting the number of observation aircraft to the extent possible. Certainly, should it develop that there are greater benefits to be obtained then presently anticipated, a reevaluation would be in order. With this in mind, the Committee thought it important to require a presidential report following the first year's experience under the Treaty.

As noted elsewhere in this report, the Committee agrees completely with the second recommendation.

The Committee concurs in the third recommendation and has incorporated an appropriate condition in the Resolution of Ratification.

The Committee agrees with the fourth recommendation and intends to prepare legislation to deal with the issue raised in recommendation five.

In their June 30, 1993, reply to the Committee on Foreign Relations, the Chairman and Ranking Minority Member of the Committee on Armed Services, Senators Nunn and Thurmond, indicated that they shared certain reservations and concerns.

They noted:

At least initially, the Open Skies Treaty will offer the United States little information of value, which it cannot obtain through other means. The greatest benefit to the United States from the Treaty lies in the possible future use of the Treaty for crisis management and environmental monitoring.

In judgments similar to those of the Committee on Foreign Relations and the Senate Select Committee on Intelligence, Senators Nunn and Thurmond communicated the following recommendations:

The Committee would recommend that action be taken to prevent the acquisition, or guard against the improper use, of data obtained from the observation flights to other than State Parties for use according to the provisions of the Treaty.

The Committee recommends that for economic purposes, barring the approval of unproved sensors for environmental monitoring which would significantly improve the information obtained by the United States through observation flights, the United States should not use it full active observation flight quota after the transitional period.

The Committee also recommends that the United States make every effort to use United States observation aircraft and sensors in its Open Skies observation flights.

As the Committee of jurisdiction for funding the costs of implementation of the Open Skies Treaty, the Committee recommends that the Senate include a condition to the resolution of ratification that the United States shall not agree to any new Open Skies sensor or a sensor with improved resolution until the interested Committees of the Senate have been notified of a recommendation in the Open Skies Consultative Commission to allow improvements to the sensor package. The notification to the interested Committees of the Senate should include security implications of the proposed changes, as well as an estimate of the cost to the United States of the proposed change.

V. COMMITTEE ACTION

Senator Pell chaired the first hearing on the Treaty on September 22, 1992. Witnesses included Ambassador John Hawes, U.S. Representative to the Open Skies Conference, Department of State, the Honorable William Inglee, Deputy Assistant Secretary, Conventional Forces and Arms Control Policy, Office of Secretary of Defense; Major General Robert Parker, United States Air Force, Director, On-Site Inspection Agency; Thomas Karas, Ph.D., Senior Associate, International Security and Commerce Program, Office of Technology Assessment; Mr. Michael Krepon, President, Henry L. Stimson Center, Washington, D.C.; Mr. Michael Moodie, Assistant Director, Bureau of Multilateral Affairs, United States Arms Control and Disarmament Agency; and Brigadier General Teddy E. Rinebarger, United States Air Force, Assistant Deputy Director for International Negotiations, Joint Chiefs of Staff.

A second hearing was held on March 11, 1993, with representatives of the Clinton Administration. Witnesses included the Honorable Robert L. Gallucci, Assistant Secretary for Politico-Military Affairs, Department of State; Mr. Thomas Graham, Acting Director and General Counsel, United States Arms Control and Disarmament Agency; Ambassador John Hawes; and Brigadier General Teddy E. Rinebarger.

The final hearing was held in closed session on March 24, 1993, with Mr. Craig Chellis, Special Assistant to the Director of Central Intelligence for Arms Control.

TAXI OPTION

One serious matter identified by the Committee with respect to the Open Skies Treaty is the so-called Taxi Option. This provision, which was demanded by the Soviets (and later the Russians and Belarusians), gives the observed party the right to demand that its observation aircraft along with its flight crew and sensors, be used to carry out an observation flight over its territory requested by an observing party. The United States and others acquiesced to the Taxi Option in order to obtain Soviet/Russian agreement that observation flights would be permitted to observe the entire territory of an observed party.

The Taxi Option is substantially different from the original concept of the Open Skies regime. The Treaty was conceived with the clear understanding that observing party, using its own aircraft, flight crew and sensors, would be permitted to overfly the territory of another Treaty participant. This point is significant. Denial to a State Party of the use of its own equipment and personnel raises the possibility that observation flights by that State Party will be less productive, or even useless. While the Treaty incorporates features to ensure that the Open Skies will be implemented smoothly, ultimately a State Party may use the terms of the Treaty itself to undermine the utility of observations flights conducted by means of the "Taxi Option." Examples of such behavior include using an optical camera that meets the technical criteria set forth in the Treaty but nonetheless might not be compatible with the film processing technology used by the observing party, or prohibiting an observation flight because it is technically not in compliance with all of the provisions of the Treaty.

In response to this problem. Chairman Pell sought clarifications on the record from the Executive Branch as to whether the Open Skies Treaty was considered to be an arms control agreement for purposes of the Nunn-Lugar Act and the Freedom Support Act. This legislation, which seeks to provide aid to states of the former Soviet Union, such as Russia and Belarus, requires certification by the President that the recipient state is "complying with all relevant arms control agreements" before it may receive assistance. By linking the Open Skies Treaty to the Nunn-Lugar Act, the Committee sought to provide a disincentive to Nunn-Lugar recipient states that might invoke the Taxi Option. For example, if Russia/ Belarus were to insist on the Taxi Option, and violated one or more provisions of the Treaty in the course of a Taxi overflight (e.g. provided substandard sensors for the observation aircraft), then the United States would have the option to respond by withholding Nunn-Lugar aid.

Thomas Graham, Jr., Acting Director of the United States Arms Control and Disarmament Agency, responded to Chairman Pell’s request for clarification on March 11, 1993, during testimony before the Committee. He testified that, "for purposes of certification in order to receive assistance under the Nunn-Lugar Act and the freedom Support Act, the Open Skies Treaty is considered to be an arms control agreement."

Subsequently, the Committee queried Mr. Graham as follows:

Does this interpretation mean that any violation of the Open Skies Treaty would affect certification for the receipt of U.S. assistance under the Nunn-Lugar Act and the Freedom Support Act? If so, do you intend to so inform the States parties that were part of the former Soviet Union?

GRAHAM. All violations of the Open Skies Treaty would affect certification for the receipt of U.S. assistance under the Nunn-Lugar Act and the Freedom Support Act. The administration will so inform all States Parties that were part of the former Soviet Union.

LIABILITY

Another concern with respect to the Open Skies Treaty relates to the provision on liability. Article XII makes a State Party liable to pay compensation to other States Parties, or to their citizens, in the event of damage caused during the implementation of the Treaty, However, the terms "damage" and "caused" were not defined in the Treaty. This lacuna could lead to serious financial consequences in the event that problems arose during observation flights.

The problem is particularly acute in cases in which an observed party invokes the Taxi Option. Consider a situation in which an observed party insists that its observation aircraft be used by the observing party for an observation flight, and, during the course of the flight, an unforeseen weather problem arises (e.g., wind shear during landing), resulting in the loss of the observed party's aircraft, the observed party's flight crew and the observing party's personnel on board the aircraft, and substantial damage and loss of life to the observed party on the ground. In such a case, who is liable? Is it the observed party, who was responsible for the observation aircraft, or the observing party, who was responsible for the observation flight?

In order to clarify this ambiguous situation, Chairman Pell requested that the Executive Branch provide its interpretation of Article XII. In response, Thomas Graham, Jr., Acting Director of the United States Arms Control and Disarmament Agency, testified on March 11, 1993, before the Committee during a hearing on the Open Skies Treaty:

Mr. Chairman. I understand that two questions have been raised about the Treaty relating to the use of an observed party's aircraft as an observation aircraft under the Treaty. In this connection, I wish to make two statements for the record.

First, Article XII of the Open Skies Treaty does not modify existing international law on liability for injury or damage that may occur as a result of flights conducted under the Treaty. It does not impose liability on the observing party to pay compensation for injury or damage to an observed party, or to its natural or juridical persons or to their property, caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty, if such observation flight was conducted using an observation aircraft designated and provided by the observed party under Article VI of the Treaty.

Further, the United States will seek compensation from the observed party in any case in which injury or damage to the United States, including but not limited to any of its flight representatives, representatives, sensor operators and inspectors, is caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty and if such observation flight was conducted using an observation aircraft designated and provided by the observed party pursuant to Article VI of the Treaty. This U.S. interpretation with respect to Article XII will be formally communicated to all States Parties to the Open Skies Treaty within the framework of the Open Skies Consultative Commission.

Subsequently, the following exchange on the record occurred between the Committee and Graham:

COMMITTEE. You stated for the record on March 11 that:

"This U.S. interpretation with respect to Article XII will be formally communicated to all States Parties to the Open Skies Treaty within the framework of the Open Skies Consultative Commission."

The interpretation set forth in your statement consisted 0f two parts, one regarding the imposition of liability and the other regarding compensation. Please clarify for the record whether the Administration's pledge to communicate the U.S. interpretation to the OSCC will include both parts of the interpretation you set forth.

Graham. The Administration's communication to the USCC on the U.S. interpretation of Article XII of the Open Skies Treaty will include both parts of the interpretation.

On Thursday, May 20, 1993, the Committee considered in markup a resolution of ratification recommending that the Senate advise and consent to ratification of the Treaty on Open Skies. The resolution includes a condition regarding sensor changes; a condition requiring a report by the President, following a year's experience with the Treaty, providing his assessment of the need for additional aircraft and the necessity to carry out the full quota of inspections allocated to the United States; and a declaration regarding Treaty interpretation. By voice vote, the Committee voted unanimously, with a majority of the Members present, to recommend to the Senate that it advise and consent to the ratification of the Open Skies Treaty, subject to the two conditions and one declaration set forth in the Resolution of Ratification.

VI. COMMITTEE COMMENTS

CONDITION ON CHANGES TO SENSORS

The Committee on Foreign Relations, at the recommendation of the Select Committee on Intelligence, approved a condition to ratification regarding changes to permitted sensors used in Open Skies observation aircraft. The Committee was subsequently informed that the Committee on Armed Services also favors such a condition. The condition provides that, in the event States Parties propose in the Open Skies Consultative Commission to adopt additional categories of sensors or additions to the capabilities of existing sensors, and the United States intends to agree to such improvements, the President shall give the Senate 30-days' notice, together with an analysis of the legal, cost, and national security implications of such proposed improvements. The cost estimates are also of interest to the Senate Committee on Armed Services.

The purpose of this condition is to ensure that the Senate is provided with advance notice of potential changes to the sensor regime that could significantly affect the operation and nature of the Treaty. While improved optical, infrared or synthetic aperture radar sensors could provide more valuable information for the United States, such improved sensors also could raise security concerns when operated over the United States. They could, for example, provide another State Party with sensitive information about United States military capabilities, as well as provide data for targeting purposes. In addition, such sensors could acquire sensitive industrial proprietary data and information about private manufacturing capabilities.

The reference in the condition to "additional categories of sensors' stems from the fact that some States Parties have suggested that the Open Skies regime be expended to include environmental sensors. Such sensors were not agreed to by the Treaty drafters, although the preamble of the Treaty cites “the possible extension of the Open Skies regime into additional fields, such as the protection of the environment," and experts from the States Parties have met to discuss this possibility. The incorporation of environmental sensors such as air samplers into Open Skies observation flights could provide valuable scientific information, but, once again, could present the risk of giving other States Parties access to sensitive information affecting the United States.

CONDITION ON U.S. OBSERVATION AIRCRAFT COSTS

The requirement of the Department of Defense for three observation aircraft is apparently premised on the planning assumption that the United States will always utilize its full annual active quota (42 flights) and must have an observation aircraft available at all times (i.e., 100 per cent availability). This planning assumption, however, is questionable for several reasons.

First, it is not clear that the United States will—or should—ever utilize its full active quota. At most, because of the 50 percent rule, the United States will be able to overfly Russia and Belarus 21 times a year. Moreover, given the relatively poor information gathering capabilities of Open Skies observation flights as compared to other United States technical means, it is not clear that the benefits of such an observation flight tempo would in any way justify the costs. The fact that many States Parties are not currently planning to use their full active quota during the first inspection phase underscores this analysis.

Second, the planning assumption does not take into account the Taxi Option. The Russians may very well insist on use of their aircraft, in which case United States aircraft will not be used.

Third, the planning assumption also does take into account the Treaty-authorized ability to use aircraft from other States Parties. If United States aircraft are not available, the United States may use observation aircraft of other States Parties with their permission.

Finally, it is not clear that 100 percent aircraft availability is necessary. It must be emphasized that an observing State Party is basically free to pick and choose when it wishes to conduct an observation flight. States Parties are not required to conduct observation flights when their aircraft are not available. Thus, having a United States Open Skies observation aircraft available around the-clock all year long is necessary only if: (a) crises arise on short notice; (b) Open Skies aircraft are the best or preferred means for observation; and (c) observation of other States Parties are not available to the United States.

Cost-benefit data provided by the Department of Defense at Committee request show that two observation aircraft would permit the United States to conduct up to 27 missions annually with a 91 percent probability that at least one aircraft would be available at any time (as compared to 41 missions per year with a 100 percent availability rate using three aircraft). One observation aircraft would allow the United States to conduct 13 missions a year with a 66 percent availability rate.

These data demonstrates that, at most, only two United States Open Skies observation aircraft are required. This conclusion is based on the fact that it is extremely unlikely the United States will need to conduct more than 27 missions annually. Furthermore, an availability rate of over 90 percent should be acceptable, especially when it is considered that most Open Skies flights will not be conducted on short notice in response to crises. In the remote possibility that more missions are required, or that both United States aircraft were temporarily unavailable, it should be possible to use observation aircraft of other States Parties or rely upon other United States intelligence assets.

The Committee, therefore, recommends a condition requiring a report by the President, following a year's experience with the Treaty, providing his assessment of the need for additional aircraft and of the necessity to carry out the full quota of inspections permitted to the United States. A decision to forego the third WC-135 would save the United States approximately $30 million dollars, not including costs associated with aircraft operations and maintenance and crew training and support.

DECLARATION ON TREATY INTERPRETATION

Since the Reagan Administration's attempt to develop a new theory of treaty-making during the dispute over the proper interpretation of the ABM Treaty, the Committee has been focused on protecting the Senate's coequal role in the treaty-making process.

The Administration has agreed that the Treaty text, Annexes, and all the associated documents, including the Article by Article Analysis, together with the testimony and other authoritative representations directed to the meaning and legal effect of the Treaty which are provided by officials from the Administration to various inquiries from the Senate during its consideration of the Open Skies Treaty will all be part of the "shared understanding" between the Executive Branch and the Senate as to both the meaning of the Treaty and the way the United States will interpret it- all in accordance with the constitutionally based Treaty interpretation principles clarified in Condition (1) of the INF Treaty and reaffirmed in the recent CFE Treaties.

The Committee declaration on Treaty Interpretation affirms that the principles of treaty interpretation, derived as a necessary implication from the Constitution, set forth in Condition (1) of the Senate's resolution of ratification of the INF Treaty (May 27, 1988) apply to all treaties[1].

As the declaration itself states, these principles apply to all treaties regardless of whether the Senate chooses to say so in its consideration of any particular treaty.

ASSESSMENT OF THE OPEN SKIES TREATY

The Open Skies Treaty will be of marginal direct benefit to the United States. There is a general consensus within the United States Government that the Treaty will not provide any significant information gains to this nation. Rather, the Treaty will, at best, constitute a limited confidence- and security-building measure, which may be of some use to some European states. Whether such an indirect benefit will actually ever serve to enhance United States national security is open to question.

On the other hand, the Open Skies Treaty is not likely to jeopardize United States national security. The only major drawback to United States participation in the Open Skies regime seems to be the cost of its implementation. While preparation for and participation in the Open Skies regime will cost the United States several tens of millions of dollars per year, this is probably justifiable on the basis that such serves to underscore in yet another way United States leadership and commitment to its allies in Europe.

VII. ENTRY INTO FORCE

In order for the Treaty on Open Skies to enter into force, 20 States Parties must deposit their instruments of ratification, including the Depositaries (i.e., Canada and Hungary), and those States Parties whose individual allocation of passive quotas as set forth in Annex A to the Treaty is eight or more (i.e., the United States, Russia/Belarus, Germany, France, the United Kingdom, Italy, Turkey, and Ukraine, as well as Canada). On July 13, 1993, only seven States Parties had ratified the Treaty: Canada, Hungary, and France, as well as the Czech and Slovak Federal Republic , Denmark, Greece, and Norway.

VIII. RESOLUTION OF RATIFICATION

SENATE OF THE UNITED STATES IN EXECUTIVE SESSION

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Treaty on Open Skies signed at Helsinki on March 24, 1992, including annexes on Quotas and Maximum Flight Distances; Information on Sensors, with an Appendix on Annotation of Data Collected During an Observation Flight; Information on Observation Aircraft; Certification of Observation Aircraft and Sensors, with an Appendix on Methodologies for the Verification of the Performance of Sensors Installed on an Observation Aircraft; Procedures for Arrivals and Departures, with an Appendix on Designation of Sites; Pre-Flight Inspections and Demonstration Flights; Flight Monitors, Flight Representatives, and Representatives; Co-ordination of Planned Observation Flights; Information on Airspace and Flights in Hazardous Airspace; Montreux Convention; Information on Film Processors, Duplicators and Photographic Films, and Procedures for Monitoring the Processing of Photographic Film; and Open Skies Consultative Commission (all transmitted within Treaty Doc. 10237); all such documents being integral parts of and collectively referred to as the "Open Skies Treaty", subject to the following:

(a) CONDITIONS—The Senate's advice and consent to the ratification of the Open Skies Treaty is subject to the following conditions, which shall be binding upon the President:

(1) CHANGES T0 SENSORS.—In the event that a State Party or States Parties seeks to obtain agreement, within the framework of the Open Skies Consultative Commission in accordance with Article IV paragraph 3, and Article X, paragraph 5, of the Open Skies Treaty, to the introduction of additional categories of sensors, or to additions to the capabilities of existing sensors provided for pursuant to the Treaty, as an improvement to the viability and effectiveness of the Treaty not requiring an amendment to the Treaty, and the United States intends to agree to such proposed improvement, the President-

(A) sha11 provide prompt notification to the President of the Senate of each such proposed improvement, to include an analysis of the legal, cost, and national security implications of such proposed improvement; and

(B) shall not provide United States agreement to each such proposed improvement, or otherwise permit adoption of each such proposed improvement by consensus within the framework of the Open Skies Consultative Commission, until at least 30 days have elapsed from the date of notification to the Senate of the intention of the President to agree to such proposed improvement,

(2) NUMBER OF UNITED STATES OBSERVATION AIRCRAFT.—The Senate finds that United States interests may not require the utilization of the full quota of allowed observation flights or the procurement of more than one or two observation aircraft. Accordingly, within 60 days following completion of the first year after entry into force of the Open Skies Treaty, the President shall submit to the Senate a report setting forth:

(A) an analysis of the first year of operation of the Treaty, highlighting any ambiguities, differences, or problems that arose in the course of implementation, as well as any benefits that have accrued to the United States by its participation in the Open Skies regime;

(B) a determination of the estimated number of observation flights to be conducted annually by the United States for the duration of the Treaty; and

(C) an assessment of the number of United States observation aircraft required to carry out the observation flights described in subparagraph (B) above, taking into consideration the potential utilization of non-United States aircraft.

(b) DECLARATION.—The Senate's advice and consent to ratification of the Open Skies Treaty is subject to the following declaration, which expresses the intent of the Senate:

TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles of treaty interpretation set forth in Condition (1) of the Resolution of Ratification with respect to the INF Treaty, approved by the Senate on May 27, 1988.

IX. ARTICLE-BY-ARTICLE ANALYSIS

The United States Arms Control and Disarmament Agency has prepared for the Committee the following article-by-article analysis of the Treaty on Open Skies.

STRUCTURE OF THE TREATY

The Treaty consists of a Preamble, 19 Treaty Articles, and 12 Annexes with three Appendices. The Annexes and Appendices are integral parts of the Treaty.

Also, there are four legally binding Decisions associated with the Treaty that were completed during the first session of the Open Skies Consultative Commission. The Decisions are as follows: Additional Non-Destructive-Testing Equipment to be used by the observed Party in accordance with Annex F, Section I, paragraph 7;Methodology for Calculating the Minimum Height Above Ground Level at Which Each Optical Camera Installed on an Observation Aircraft May Be Operated During an Observation Flight in accordance with Annex D, Appendix I, Section III, paragraph 2; Minimum Camera Specification for an Observation Aircraft of an Observed Party Exercising its Right to Provide an Observation Aircraft for an Observation Flight; and Responsibility for the Processing of Film Used During an Observation Flight in accordance with Article IX, Section II, paragraph 2. These documents are legally binding and constitute separate international agreements that are associated with, but not part of, the Treaty. Also attached for the information of the Senate is the draft Decision on the Distribution of Costs Arising Under the Treaty on Open Skies. The draft has not yet been adopted by the Open Skies Consultative Commission. Once it is adopted, it will have the same legally binding status as the other Decisions.

PREAMBLE

The Preamble consists of nine paragraphs. Paragraph 1 states that the States Parties are those States that have concluded the Treaty. The States that concluded the Treaty are those that signed the Treaty on March 24, 1992. They are the United States of America, the Federal Republic of Germany, the Republic of Belarus, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Kingdom of Denmark, the Kingdom of Spain, the French Republic, Georgia, the United Kingdom of Great Britain and Northern Ireland, the Hellenic Republic, the Republic of Hungary, the Republic of Iceland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of Norway, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, Romania, the Russian Federation, the Czech and Slovak Federal Republic, the Republic of Turkey, and Ukraine.

States Parties may also include States that sign the Treaty after March 24, 1992 as well as those that accede to the Treaty after the Treaty has entered into force. Article XVII of the Treaty designates those States that may sign and accede to the Treaty.

In this respect, it should be noted that Georgia, although it did not participate in the negotiations, signed the Treaty on March 24. It did so based on provisions in the Treaty developed to facilitate participation by all of the newly independent States which have emerged on the territory of the former Soviet Union. Article XVII, which deals with the Depositaries, Entry into Force and Accession to the Treaty, provides that the States listed in Article XVII, paragraph 3 may sign the Treaty prior to its entry into force. Specifically, Article XVII, paragraph 3 provides that the Treaty shall be open for signature by Armenia, Azerbaijan, Georgia, Kazakhstan, Kirgystan, Moldova, Tajikistan, Turkmenistan and Uzbekistan and shall be subject to ratification by them. None of these States participated in the negotiation of the Treaty. However, by signing and ratifying the Treaty, these States will become States Parties. It should also be noted that the remaining eight States may accede to the Treaty (become a State Party to the Treaty after the Treaty has entered into force) at any time pursuant to Article XVII, paragraph 3 of the Treaty.

In addition, Article XVII provides that States other than the nine newly independent States of the former Soviet Union may become States Parties by acceding to it after the Treaty has entered into force. Article XVII, paragraph 4 provides in pertinent part that, for six months after entry into force of this Treaty, any other State participating in the Conference on Security and Cooperation in Europe, other than those mentioned in paragraph 3 of Article XVII, may apply for accession by submitting a written request to one of the Depositaries, Article XVII, paragraph 5 provides that, following six months after entry into force of the Treaty, the Open Skies Consultative Commission may consider the accession to the Treaty of any State which, in the judgment of the Commission, is able and willing to contribute to the objectives of the Treaty.

The second paragraph of the Preamble notes that the States Parties recall their commitments made in the Conference on Security and Cooperation in Europe. In this respect, openness, transparency, and confidence-building are among the primary objectives of the Treaty.

The second paragraph of the Preamble notes that the States Parties welcome the historic events in Europe which have transformed the security situation from Vancouver to Vladivostok. These events, including the dissolution of the Warsaw Pact, the unification of Germany, and the dissolution of the former Soviet Union, are seen as highly favorable to peace, security and stability by all participants.

The fourth paragraph of the Preamble notes that the States Parties wish to contribute to the future development and strengthening of peace, stability and cooperative security in that area by the creation of the Open Skies regime for aerial observation. "That area" as referred to in this paragraph of the Preamble is the area formed by the original signatories which stretch from Vancouver to Vladivostok.

The fifth paragraph of the Preamble notes, at United States suggestion, that the States Parties recognize the potential contribution of the Open Skies regime to the security and stability in other regions. This paragraph recognizes the potential for the Treaty principles to cover areas beyond Vancouver to Vladivostok.

The sixth paragraph of the Preamble describes a potential range of contributions which the Open Skies regime might make, noting for example the possibility of employing the Open Skies regime to improve openness and transparency, to facilitate the monitoring of compliance with existing or future arms control agreements, and to strengthen the capacity for conflict prevention and crisis management in the framework of the Conference on Security and Cooperation in Europe. The paragraph emphasizes the instrumental way in which Open Skies may contribute in a variety of institutional contexts without being limited to any particular set of activities or institutional frameworks.

The seventh paragraph of the Preamble notes that the States Parties envision the possible extension of the Open Skies regime into additional fields, such as the protection of the environment. This paragraph is intended to reflect the desire of some delegations to eventually expand the scope of the Open Skies regime to such fields as environmental protection. This idea is also reflected in Annex L, Section IV of the Treaty, which provides that "States Parties may raise for consideration in the Open Skies Consultative Commission proposals for the use of the Open Skies regime in additional specific fields, such as the environment."

The eighth paragraph of the Preamble sets forth an underlying principle of the Open Skies Treaty: that all territories of all the States Parties are to be open for aerial observation. This paragraph specifically states that the States Parties seek to establish agreed procedures to provide for aerial observation of all the territories of States Parties. The paragraph also states that this observation is to be accomplished on the basis of equity and effectiveness. This is reflected in the balance in the Treaty between the rights and obligations of States Parties under the Treaty, and in provisions on the conduct of operations and the quality of output. The reference to flight safety reflects the fact that the only permissible limitation on observation flights under the Treaty is for reasons of flight safety. This paragraph also notes that aerial observation will be conducted either through the observation of a single State Party or of groups of States Parties.

The ninth and final paragraph of the Preamble notes that the Open Skies regime will be without prejudice to States not participating in it. This paragraph is intended to assure non-participating States that their interests will not be damaged by the operation of the Open Skies Treaty, for example, by the use of observation flights conducted under the provisions of the Treaty to gather information on non-participating States.

TREATY ARTICLES

Each of the Treaty Articles and Annexes and their related Appendices in this Article-by-Article Analysis is given a title. These titles are the same as those in the Treaty. Throughout the negotiations, the working draft Treaty Articles and Annexes and their related Appendices were provided with titles, which were retained in the final text.

Article I—General obligations

Article I consists of two paragraphs. Paragraph 1 of Article I describes the content of the Treaty. It provides that the Treaty establishes the regime to be known as the Open Skies regime for the conduct of observation flights by States Parties over the territories of other States Parties. This makes clear that observation flights conducted by a State Party in accordance with the rights and obligations established in the Treaty on Open Skies can be conducted only over the territories of other States Parties and not over the territories of States not parties to the Treaty. Paragraph 1 states that the Treaty sets forth the rights and obligations of the States Parties as they relate to the Open Skies regime.

Paragraph 2 of Article I provides that each of the Annexes and their related Appendices constitutes an integral part of the Treaty. the Annexes and their related Appendices are as follows:

(1) Annex A-Quotas and Maximum Flight Distances;

(2) Annex B—Information on Sensors with an Appendix on Annotation of Data Collected During an Observation Flight;

(3) Annex C—Information on Observation Aircraft;

(4) Annex D—Certification of Observation Aircraft and Sensors with an Appendix on Methodologies for Verification of the Performance of Sensors Installed on an Observation Aircraft;

(5) Annex E—Procedures for Arrivals and Departures with an Appendix (on Designation of Sites and Points of Entry, Points of Exit, Open Skies Airfields, Entry Fixes, Exit Fixes, Refueling, Airfields, and Calibration Targets);

(6) Annex F—Pre-Flight Inspections and Demonstration Flights;

(7) Annex G—Flight Monitors, Flight Representatives, and Representatives;

(8) Annex H—Coordination of Planned Observation Flights;

(9) Annex I—Information on Airspace and Flights in Hazardous Airspace;

(10) Annex J—Montreux Convention;

(11) Annex K—Information on Film Processing, Duplicators and Photographic Films, and Procedures for Monitoring the Processing of Photographic Film; and

(12) Annex L—Open Skies Consultative Commission.

The second paragraph makes clear that States Parties are legally bound by the obligations contained in the Articles of the Treaty as well as those contained in the Annexes and their related Appendices. The fact that the Appendices and related Annexes are not called Articles does not detract from their obligatory nature.

Article II—Definitions

Article II consists of 35 numbered paragraphs, each of which sets forth a term and its definition. Each term provided in this Article is used at least once in the Treaty or its Annexes. The order of the terms in Article II is approximately the order of their appearance in the text of the Treaty.

Additional terms are defined or described in other parts of the Treaty and its Annexes, including the following terms (with the corresponding references): "total passive quota" (Article III, Section I, paragraph 4), and "individual active quota" and "total active quota" (Article III, Section I, paragraph 5).

The numbers provided below correspond with the numbers given to the terms in Article II.

1. The term "observed Party" means the State Party or group of States Parties over whose territory an observation flight is conducted or over whose territory an observation flight is intended to be conducted. This term also includes personnel of that State Party or group of States Parties who are responsible for carrying out activities provided for in the Open Skies Treaty with respect to observed Parties. This definition contains the period of time during which a State Party or group of States Parties is considered to be an "observed Party." That period of time is described as the period from the receipt of the notification sent to that State Party or group of States Parties pursuant to paragraph 5 of Section I of Article VI until completion of the procedures relating to that flight, which are covered in paragraph 21 of Section I of Article VI. This period of time would also include the time required to discuss issues related to the results of that flight, which may be referred to the Open Skies Consultative Commission by either Party, including any questions on liability that may arise pursuant to Article XII.

The inclusion of the period of time in this definition was intended by the negotiators to be descriptive and not to impose any limitations on the rights or obligations of the State Party or group of States Parties involved. Its inclusion was in recognition of the fact that the status of States Parties vis-a-vis one another, in their capacities as alternatively observing and observed Parties, would be constantly shifting. The discrete events that identify the status of States Parties are the provision and receipt of notifications and the completion of flights, including sessions of the Open Skies Consultative Commission that deal with the flights,

The reference in the definition to personnel "acting on behalf of States Parties addresses concerns raised by several delegations in the course of the negotiations that a State Party qua State does not carry out specific actions; instead, it was argued, agents of that State carry out such actions. Thus, it was proposed during the negotiations either to add, throughout the Treaty, the words "personnel of the" before the words "observed Party," where such an addition appeared to be logical from the context of the provision, or to insert those words in the definition itself; the latter approach was adopted. For clarity, however, the expression "personnel" is sometimes used before the words "observed Party", even though such words are redundant in the context of the defined term (see, for example, Article VI, Section I, paragraph 12).

2. The term "observing Party" means the State Party or group of States Parties that intends to conduct an observation flight, or conducts an observation flight, over the territory of another State Party or group of States Parties. This term includes personnel of that State Party or group of States Parties responsible for carrying out activities provided for in the Open Skies Treaty with respect to observing Parties. This definition includes the period of time that a State Party or group of States Parties is considered to be an "observing Party." This period is described as being from the time that State Party or group of States Parties has provided the notification pursuant to paragraph 5 of Section I of Article VI until completion of the procedures relating to that flight, which are covered in paragraph 21 of Section I of Article VI. This period would also include the time required to discuss issues which may be referred to the Open Skies Consultative Commission based on the results of that flight, including any questions on liability that may arise pursuant to Article XII.

The inclusion of the period of time in the definition was intended to be descriptive and not to impose any limitations on the rights or obligations of the State Party or group of States Parties conducting the observation flight, as noted with respect to the term "observed Party" supra. The inclusion of the language concerning personnel "acting on behalf of that State Party or group of States Parties was for the reasons provided with respect to the term "observed Party." Such personnel are not required to be nationals of the State Party on whose behalf they are acting, and may be nationals of any State Party.

3. The term “group of States Parties" means two or more States parties that have agreed to form a group for purposes of the Treaty. Article III deals with the effect that forming a group of States Parties has with respect to the allocation of passive quotas and the distribution of active quotas. The Benelux, for which special treatment is specified in Article XIV, is not a group of States Parties for purposes of the Treaty. Rather, under the terms of that Article, the three States Parties have agreed to be considered a single State Party for the purposes of specified Articles and Annexes; in all other cases, they are considered to be individual States Parties. At the present time there are two groups of States Parties: the group of the Republic of Belarus and the Russian Federation, and the group of States Parties members of the Western European Union.

4. The term "observation aircraft" means an unarmed, fixed wing aircraft designated to make observation flights, registered by the relevant authorities of a State Party and equipped with agreed sensors. The word "unarmed" is defined for the purposes of this definition as meaning that the observation aircraft is not equipped to carry and employ weapons. It is the present intention of the United States, Russia, and most other States Parties to use aircraft in the Open Skies regime that are not and have never been equipped to carry and employ weapons. However, several States Parties may wish to use aircraft that could be equipped with weapons, such as the P-3 "Orion" anti-submarine warfare aircraft, which could be equipped with torpedoes, during the time that they are not being used as observation aircraft. Such aircraft would be permissible as observation aircraft as long as necessary modifications or arrangements were made so that such aircraft were not equipped—at the time of use as an Open Skies observation aircraft—to carry and employ weapons. The word "equipped" should be understood to mean having in an operational status the necessary equipment and structural elements to accomplish a given function; in this case, to carry and employ weapons.

The procedures for designating an aircraft to make observation flights are contained in Article V and Annex C, and are referred to in this definition to recall the requirements contained therein. The additional requirement that such aircraft be registered by the relevant authorities of a State Party is contained in paragraph 1 of Article V. The word "registered" in this context means having completed the formal procedures adopted by a State in order to assign its nationality and registration marks to an aircraft. Such registration marks are necessary in order to apply ICAO rules and regulations to such aircraft. There is no requirement that the aircraft to be used by an observing Party be either designated or registered, or be both designated and registered, by that State Party, or that the designation and the registration be by the same State Party. The phrase "equipped with agreed sensors" refers to the limitations contained in Article IV and Annex B as to what sensors may be installed on observation aircraft, and, for aircraft that are provided by the observed Party, the so-called "taxi" aircraft, the sensors that must be installed on the observation aircraft.

5. The term "observation flight" means the flight of the observation aircraft conducted by an observing Party over the territory of an observed Party from the point of entry or Open Skies airfield to the point of exit or Open Skies airfield, as the flight of that aircraft is provided in the flight plan. The requirements for compiling the flight plan are contained in Section II of Article VI; deviations from that flight plan are permitted in accordance with Section II of Article VIII. In accordance with Annex E, a point of entry and an Open Skies airfield, as well as a point of exit and an Open Skies airfield, can be the same airfield but need not be. The reason for the distinction between the two is described in the definition of "Open Skies airfield" infra.

6. The term "transit flight" means the flight of an observation aircraft or transport aircraft over the territory of a third State Party en route to or from the territory of the observed Party. Thus, a transit of such aircraft over the territory of a State not a party to this Treaty does not meet this definition, nor does the flight of such aircraft that is not going to, or coming from, the territory of the observed Party. The inclusion of the words "conducted by or on behalf of an observing Party" is intended to cover the situation in which an aircraft used for an observation flight belongs to a State Party other than the observing Party; such a situation is covered in paragraph 2 of Section I of Article Vl.

7. The term "transport aircraft" means an aircraft other than an observation aircraft that conducts flights to or from the territory of the observed Party exclusively for the purposes of the Treaty. Such an aircraft is used when the personnel of the observing Party arrive on the territory of the observed Party in an aircraft other than the observation aircraft: this would be the situation in which the observed Party provides the observation aircraft, the "taxi" option. That aircraft can, pursuant to paragraph 9 of Annex E, remain at the point of entry or proceed to the point of exit, if different from the point of entry, and wait until personnel conducting the observation flight are ready to depart the territory of the observed Party.

8. The term "territory" means the land, including islands, and internal and territorial waters, over which a State Party exercises sovereignty. This definition is intended to reflect existing international law and practice with respect to that term, and was included in the Treaty simply to affirm that this common understanding is the complete description of the territory to be covered. Based on this broad definition, it was not necessary to provide specific geographic designations or lists of areas covered by the Open Skies Treaty. For the United States, this common international law definition means that Open Skies observation may cover all fifty States and the District of Columbia, as well as island territories in the Pacific and Caribbean over which the United States exercises sovereignty.

9. The term "passive quota" means the number of observation flights that each State Party is obligated to accept as an observed Party. The allocation of such flights, which is expressed in terms of a specific number of such flights per year for each State Party or each group of States Parties, is contained in Section I of Annex A, there is only one number for each State Party or each group of States Parties; This number, unlike the distribution of active quotas contained in Section II of Annex A, is not subject of annual review by the Open Skies Consultative Commission.

10. The term "active quota" means the number of observation flights that each State Party has the right to conduct as an observation Party. A Party's active quota may not exceed its passive quota, pursuant to paragraph 5 of Section I of Article III. The initial distribution of such numbers is contained in Section II of Annex A, and is subject to annual review in the Open Skies Consultative Commission pursuant to paragraph 7 of Section I of Article III. Each active quota is divided into several "individual active quotas", which are the numbers of observation flights that a State Party may conduct over specified States Parties. The definition of "individual active quota" is contained in paragraph 5, Section 1 of Article III.

11. The term "maximum flight distance" means the maximum distance over the territory of the observed Party from the point at which the observation flight may commence to the point at which that flight may terminate. The maximum flight distance include those route segments for intermediate stops, including refueling airfields. Such distances are specified in Section III of Annex A, and are used for evaluating the observation flight distance proposed in the mission plan of an observing Party, in accordance with paragraph 4 of Section II of Article VI, as well as establishing the number of Open Skies airfields, that an observed Party is required to have.

12. The term "sensor" means equipment of a category specified in Article IV that is installed on an observation aircraft for use during the conduct of observation flights. The categories of equipment specified in Article IV are those used in the gathering of data, e.g., cameras, synthetic aperture radar, and infra-red line-scanning devices. The reason for referring to Article IV in this definition is partially linguistic: the term "sensor" is properly rendered in the Treaty text in Russian as "observation equipment." A literal translation of the term "sensor" into Russian would have referred to a single detector element rather than the integrated system of such detector elements that makes up a camera, radar, infra-red system or other complete sensor in its meaning in English. It was thus necessary to refer to the categories listed in Article IV to ensure an equivalent definition in English and Russian; there are no such problems in the four other official languages.

13. The term "ground resolution" means the minimum distance on the ground between two closely located objects distinguishable as separate objects. It was agreed during the negotiations that the methodologies for determining the capability of individual sensors to achieve a specified ground resolution, including the minimum altitude from which such a resolution can be achieved, would be developed by the Open Skies Consultative Commission during the period of provisional application of the Treaty, as specified in Annex D. The methodology for optical cameras was agreed upon on June 29, 1992. The capability of an individual sensors to achieve a specified ground resolution—expressed, for the categories of sensors to be used under this Treaty, in terms of centimeters or meters—is the primary factor for evaluating the acceptability of sensors for installation and use in observation aircraft, as provided in paragraph 2 of Article IV, and for the certification of the aircraft and its sensors pursuant to Annex D.

14. The term "infra-red line-scanning device" means a senor capable of receiving and visualizing thermal electro-magnetic radiation emitted in the invisible infra-red part of the optical spectrum by objects due to their temperature and in the absence of artificial illumination. This definition, which follows the standard technical definition for such devices, was included in the Treaty because of linguistic concerns raised by the Russian delegation, based on the perceived complexity of the English term. The reference to artificial illumination indicates that the system in question does not depend on active illumination of an observed object, but rather gathers infra-red radiation emitted by the observed object itself. Line-scanning devices were selected as opposed to other types of infra-red sensors to avoid technology transfer problems that might arise with more sophisticated system.

15. The term "observation period" means a period of time during an observation flight, specified by the observing Party, when a particular sensor installed on the observation aircraft is operating. There is no limit on the number or duration of such observation periods during an observation flight. Sensors may be operated for the entire duration of a flight, so long as the observation aircraft does not deviate from the agreed flight path and the flight altitude is appropriate for each sensor. Information on such sensor operating periods is required because the film or other recording medium has to be annotated with such information in accordance with Annex B. Such information permits all Parties to know when a where data was collected, and permits third Parties to request data taken during specified periods, in accordance with the provisions of Article IX.

16. The term "flight crew" means individuals who perform duties associated with the operation or servicing of an observation aircraft or of transport aircraft, including interpreters. The words "from any State Party" were added to cover the situation in which all or any part of the flight crew, along with the observation aircraft, are operating "on behalf of” the observing Party but in fact "belong" to another State Party, as provided for in paragraph 2 of Section I of Article VI. Interpreters were included in this definition because it was recognized that Parties would be likely to include interpreters among the personnel included on an Open Skies flight. Interpreters were included as a separate category of personnel in Section III of Article VI, along with flight monitors, flight representatives and representatives.

17. The term "pilot-in-command" means the pilot on board the observation aircraft who is responsible for the operation and safety of the observation aircraft and the execution of the flight plan. This definition is similar to the definition of "pilot-in-command" used by the International Civil Aviation Organization, which reads as follows: "The pilot responsible for the operation and safety of the aircraft during flight time." (ICAO Document 4444-RAC/501/12, "Rules of the Air and Air Traffic Services," Part I, page 1-10). The specific rights and obligations of the pilot-in-command are contained in paragraph 16 of Section I of Article Vi and paragraphs 4 and 7 of Section II, and paragraph 1 of Section III, of Article VIII.

18. The term "flight monitor" means an individual who, on behalf of the observed Party, is on board an observation aircraft provided by the observing Party during the observation flight and who performs duties in accordance with Annex G. The expression "aircraft” provided by the observing Party" should be read to include aircraft which the observing Party itself owns, or aircraft which the observing Party is using under an arrangement with a third State Party, as provided for in paragraph 2 of Section I of Article VI. The phrase "during the observation flight" is used to distinguish between those personnel who conduct inspections or escort inspectors prior to the commencement of the observation flight and those personnel who actually participate in the observation flight.

19. The term "flight representative" means an individual who, on behalf of the observing Party, is on board an observation aircraft provided by the observed Party during an observation flight and who performs duties in accordance with Annex G. The procedures for designating such individuals, as well as their privileges and immunities, are contained in Article XIII.

20. The term "representative" means an individual who has been designated by the observing Party and who performs activities on behalf of the observing Party in accordance with Annex G during an observation flight on an observation aircraft designated by a State Party other than the observing Party or the observed Party, as provided for in paragraph 2 of Section I of Article VI. In such a situation, other personnel on board the observation aircraft working on behalf of the observing Party could be known as "flight crew;" as noted above with respect to the term "flight monitor," the personnel of the observed Party on board such an aircraft would still be known as "flight monitors."

21. The term "sensor operator" means an individual from any State Party who performs duties associated with the functioning, operation and maintenance of the sensors on an observation aircraft. Such personnel could also be considered to be representatives, flight representatives, or flight crew, spending on their duties. For an aircraft provided by the observed party, individuals of the observed Party carrying out such duties would also be known as "flight crew."

22. The term "inspector" means an individual from any State Party who conducts an inspection of sensors or observation aircraft of another State party. The procedures for the conduct of such inspections are contained in Annexes D and F.

23. The term "escort" means an individual from any State Party who accompanies the inspectors of another State Party. The procedures for the conduct of inspections are contained in Annexes D and F.

24. The term "mission plan" means a document that is presented by the observing Party to the observed Party and forms the basis for the elaboration of the flight plan. The format of this document will be established by the Open Skies Consultative Commission prior to entry into force of the Treaty. The missing plan contains the route, profile (altitudes), order of execution and support required to conduct the observation flight. Specific procedures for the approval of the mission plan are contained in Section II of Article VI.

25. The term "flight plan" means a document elaborated on the basis of the mission plan that has been agreed in accordance with Section II of Article VI. Such document shall be in the format and with the content specified by the International Civil Aviation Organization, which is contained in ICAO Document 4444-RAC/60l/lSt "Rules of the Air and Air Traffic Services." The flight plan is presented to the air traffic control authorities of the observed Party and, in accordance with paragraph 14 of Section I of Article VI, provides the basis on which the observation flight will be conducted. Permitted deviations from the flight plan are described in Article VIII.

26. The term "mission report" means a document describing an observation flight, which is completed after the termination of the observation flight by the observing Party and which is signed by both the observing and observed Parties. The format of the mission report will be established by the Open Skies Consultative Commission.

27. The term "Open Skies airfield" means an airfield designated by the observed Party as a point where an observation flight may commence or terminate. An Open Skies airfield may be a point of entry or a point of exit, or it may be a separate airfield designated solely as an Open Skies airfield.

28. The term "point of entry" means a point designated by the observed Party for the arrival of personnel of the observing Party on the territory of the observed Party. The observation flight may also commence at this point if it is also designated an Open Skies airfield. The phrase "personnel of the observing Party includes personnel who are acting on behalf of the observing Party, but who are not necessarily nationals of the observing Party, such as the flight crew of an aircraft arranged for by the observing Party with a third State Party, pursuant to paragraph 2 of Section I of Article VI.

29. The term "point of exit" means a point designated by the observed Party for the departure of personnel of the observing Party from the territory of the observed Party. The observation flight may also terminate at this point if it is designated an Open Skies airfield. The phrase "personnel of the observing Party" includes those personnel who are acting on behalf of the observing Party, but are not necessarily nationals of the observing Party, such as the flight crew of an aircraft arranged for by the observing Party with a third State Party. A "point of entry" and "point of exit" may be the same point.

30. The term "refueling airfield" means an airfield designated by the observed Party to be used for fuelling and servicing of observation aircraft and transport aircraft. Such airfields may be designated in accordance with Annex E. The observed Party is obliged, pursuant to paragraph 17 of Section I of Article VI, to provide customary commercial aircraft fuelling and servicing for the aircraft at such an airfield, according to the specifications that are published about that airfield.

31. The term "alternate airfield" means an airfield to which an observation aircraft or transport aircraft may proceed when it becomes inadvisable to land at the airfield of intended landing. This category includes emergency airfields and airfields that may be used as weather alternates if weather at the planned destination is unsuitable for land. Information about such airfields shall be provided by the observed Party to the flight crew upon approval of the mission plan, pursuant to paragraph 13 of Section I of Article VI.

32. The term "hazardous airspace" means the prohibited areas, restricted areas and danger areas, denied on the basis of Annex 2 to the Convention on International Civil Aviation, that are established in accordance with Annex 15 to that Convention in the interests of flight safety, public safety and environmental protection and about which information is provided in accordance with ICAO provisions. The terms "prohibited area," "restricted area," and "danger area," while based on the definitions of such terms in Annex 2 to the Convention, are defined for the purposes of Open Skies in paragraphs 33, 34, and 35 of this Article, respectively. The reference to the ICAO provisions was intended to make clear that the provisions do not permit the establishment of prohibitions or restrictions for other purposes, e.g., national security, which would be inconsistent with the openness of territory which is basic to the Open Skies regime.

The concept of hazardous airspace applies to situations in which a flight plan may be subject to deviation in accordance with Article VIII and Annex I. Information about such areas must be provided in accordance with ICAO provisions in order to meet the definition of hazardous airspace; such information is listed in Annex I- However, paragraph 2 of Section II of Article VI permits the observation of any point on the entire territory of the observed Party; thus, designating an area as "hazardous airspace" does not mean that such area is not subject to observation.

33. The term "prohibited area" means an airspace of defined dimensions, above the territory of a State Party, within which the fight of aircraft is prohibited, in accordance with specified conditions. This term is one of the three types of areas that are covered under the term "hazardous airspace," on the basis of the ICAO Convention. As noted in paragraph 32 supra, the term does not permit the closure of areas for national security purposes.

34. The term "restricted area" means an airspace of defined dimensions, above the territory of a State Party, within which the flight of aircraft is restricted in accordance with specified conditions. This term is one of the three types of areas that are covered under the term "hazardous airspace, on the basis of the ICAO Convention. As noted in paragraph 32 supra, the term does not permit the closure of areas for national security purposes.

35. The term "danger area" means an airspace of defined dimensions, within activities dangerous to the flight of aircraft may exist at specified times. This term is one of the three types of areas that are covered under the term "hazardous airspace,' on the basis of the ICAO Convention. As noted in paragraph 32 supra, the term docs not permit the closure of areas for national security purposes.

Article III—Quotas

Article III consists of two sections, one dealing with general provisions on quotas, the other dealing with special provisions on quotas for groups of States Parties. This Article, together with Annexes A and L, comprises the primary sources for procedures relating to the allocation of passive quotas and the annual distribution of active quotas.

Paragraph 1 of Section I provides that each State Party has the right to conduct observation flights, i.e., to exercise its right to use the active quota distributed to it, in accordance with the provisions of this Treaty.

Paragraph 2 of Section I provides that each State Party is obliged to accept observation flights over its territory, i.e., fulfill its obligation with respect to the passive quota allocated to it, in accordance with the provisions of this Treaty.

Paragraph 3 of Section I provides that each State Party has the right to conduct a number of observation flights over its territory of another State Party equal to the number of such flights which the other State Party has the right to conduct over the territory of the former. It should be understood that this is a right, not an obligation. Moreover, the right of an observing Party to conduct observation flights over a given observed Party is also affected by the total size of the active quota available to the observing Party; the total size of the passive quota of the observed Party; the demand for utilization of that passive quota by other interested observing Parties; and the rule, in paragraph 10 of this Section, that no Party shall conduct more observation flights over the territory of another Party than 50 percent of its own active quota, or 50 percent of the passive quota of that Party, whichever is less. The right to equality, as set forth in this paragraph, was thus only one of many factors influencing the actual distribution of active quotas among the initial participants in the Treaty.

For example, as specified in Section II of Annex A, the United States has the right, during the initial phase-in period of implementation, to conduct eight out of a total of 31 observation flights over the territory of the Republic of Belarus and the Russian Federation of group States Parties. By the provisions of paragraph 3, the Republic of Belarus and the Russian Federation group of States Parties would have the right to conduct eight observation flights over the territory of the United States of America. However, the Belarus/Russian group elected to seek only four observation flights over the United States and to utilize the remaining part of its active quota elsewhere, over Benelux, Canada, Denmark, France, Germany, Greece, Italy, Norway, Turkey, and the United Kingdom.

Paragraph 4 of Section I describes what is meant by a total passive quota for a State Party, as those numbers are set forth for all States Parties in Section I of Annex A. The total passive quota is the total number of observation flights that a State Party is obliged to accept over its territory. Passive quotas are allocated once and are not subject to routine annual review, as is the case for active quotas.

Paragraph 5 of Section I describes what is meant by the phrase "individual active quota" of a State Party with respect to another State Party. The individual active quota of a State Party with respect to another State Party is the number of observation flights that the former has the right to conduct each year over the territory of the latter. These numbers are specified in Section II of Annex A for the first distribution, and are subject to annual review thereafter. The sum of the individual active quotas is the total active quota of that State Party. Finally, paragraph 5 establishes the rule that the total active quota of a State Party shall not exceed its total passive quota.

Paragraph 6 of Section I states that the first distribution of active quotas, which includes both total active quotas and individual active quotas, is provided in Section II of Annex A.

Paragraph 7 of Section I provides that, upon entry into force of the Treaty, the distribution of active quotas is subject to an annual review by the Open Skies Consultative Commission. This paragraph also states that, if it is not possible to arrive at agreement on a new distribution of active quotas with respect to a State Party, i.e., the individual active quotas of other States Parties that represent overflights over that State Party, then the previous year's distribution with respect to that Party shall apply. The redistribution of individual active quotas cannot cause the total active quota of any State Party to exceed its passive quota, as stated in paragraph 5 of this Section. Section II of Annex L sets forth additional provisions on this redistribution process.

Paragraph 8 of Section I states that each observation flight conducted shall be counted against the individual and total active quotas of the State Party conducting it, except as provided for when canceling observation flights pursuant to Article VIII. In effect, this paragraph constitutes a "counting rule," establishing the relationship between an observation flight that has been conducted and the number of the individual active quotas and total active quota remaining after that flight.

Paragraph 9 of Section I states that a State Party may transfer a part or all of its total active quota to other States Parties, with three restrictions, one of which is set forth in paragraph 10: (1) the State Party transferring the active quota must have been distributed an active quota in accordance with Annex A or Annex L; (2) the State Party to be overflown must agree to the transfer; and (3) no State Party shall conduct more observation flights over the territory of another State Party than 50 percent of its own total active quota or 50 percent of the total passive quota of the Party to be overflown, whichever is less. This provision specifically exempts the transferred observation flights from the limitations imposed on active quotas in paragraphs 3 and 5 of this Section relating to the right of each State Party to conduct a number of observation flights over the territory of any other State Party equal to the number of flights that such Party may conduct over it, and linking the size of a Party's active quota to its passive quota.

Paragraph 10 of Section I states that the number of observation flights that a State Party conducts over the territory of another State Party may not exceed the lesser of: (1) 50 percent of its own total active quota, rounded up to the nearest whole number, or (2) 50 percent of the total passive quota of the other State Party. It is necessary for practical reasons to use whole numbers rather than fractions or decimals; thus, if 50 percent of the number is not a whole number, the number to be used in this provision will be the next whole number in sequence, after the 50 percent calculation has been done. This provision is intended to promote wide participation in the Open Skies regime, and not to permit that regime to become monopolized by a few States Parties. Thus, for example, the Federal Republic of Germany could not use flights transferred to it by other Western European Union countries to overfly Russia if that would exceed six flights conducted by Germany over Russia, which is 50 percent of Germany's total active quota.

Paragraph 11 of Section I states that the maximum flight distances of observation flights over the territories of the States Parties are set forth in Section III of Annex A. In accordance with Article VI, a mission plan proposed by an observing Party can be rejected or shortened by the observed Party if it provides for a flight distance in excess of this number. Maximum flight distances were developed for each Party—and in some cases for flights originating from particular Open Skies airfields of a Party—in such a way as to ensure effective coverage of all the territory of each Party.

Paragraph 1 of Section II provides the general right of two or more States Parties that have been allocated a passive quota or that have been distributed an active quota to form a group of States Parties. While there are no States Parties to the Open Skies Treaty—as of Treaty signature—that either do not hold such quotas or are not intended to hold such quotas, it is possible under the Open Skies Treaty to have States Parties which have not been allocated active quotas. Such States Parties would not be eligible to join groups of States Parties under the provisions of this Section. The allocation of quotas for Parties acceding to the regime would be subject to a consensus decision in the Open Skies Consultative Commission; until a quota has been allocated, such Parties could not join a group of States Parties.

Subparagraph (A) states that the formation of a group of States Parties can occur at signature of the Open Skies Treaty or thereafter, but, for a group formed after signature of the Treaty, the provisions of this Section shall not apply until six months after notifying all other States Parties of the formation of the group.

Subparagraph (B) states that groups of States Parties shall cooperate with regard to active and passive quotas. This means that negotiations shall be carried out within these groups in accordance with paragraphs 2 and 3 of this Section, which describe two different ways of forming groups of States Parties, based on how quotas are handled within the group.

Paragraph 2 describes an arrangement whereby the members of a group of States Parties can redistribute within the group their active quotas while retaining their individual passive quotas. The Western European Union announced at the time of Treaty signature that it was forming such a group of States Parties.

Subparagraph (A) states that notification of such a redistribution shall be made to all third States Parties that are concerned, i.e., those States Parties that would be observed, as specified in the annual distribution of active quotas provided for in Section II of Annex A. Unlike paragraph 8 of Section I, a provision that permits the transfer of active quotas to other States Parties upon agreement of the State to be overflown, a redistribution pursuant to paragraph 2 of this Section would not be subject to agreement by the Party to be observed. In any event, redistribution of quotas are subject to the 50 percent rule contained in paragraph 10 of Section I of this Article.

Subparagraph (B) describes how an observation flight over the territory of one or more members of the group of States Parties would count against the individual and total active quotas of the observing Party. Such a flight would count for as many observation flights as the number of members of the group which are overflown. With respect to counting against the total passive quota of each of the members of the group overflown, each flight would count as one observation flight for each member of the group.

Subparagraph (C) establishes that each State Party over which a member of the group has the right to conduct an observation flight has the right to conduct over the territory of any member of the group 50 percent more observation flights than the number it otherwise would have been entitled to conduct over that member, or to conduct two overflights of any member if it does not have the right to conduct overflights over that member of the group. This provision is intended to compensate States Parties outside a given group against any imbalance that might arise out of the ability of the States Parties within the group to transfer active quota rights among themselves. This provision does not create the right to conduct additional observation flights, over and above the total active quota of the State Party over which a member of the group of States Parties has the right to conduct an observation flight. Rather, this provision permits that State Party to redistribute its active quota vis-a-vis members of a group.

Subparagraph (D) states that if a State Party exercises the rights provided for in Subparagraph (C), it must reduce the number of observation flights that it has the right to conduct over other members of the group in such a way that the total number of observation flights that it conducts over the territories of those members does not exceed the sum of the observation flights that it has the right to conduct over the territories of all the members of the group in the current year. This provision is intended to make certain that States Parties that have formed such a group are not penalized for doing so.

Subparagraph (E) establishes that the maximum flight distances contained in Section III of Annex A apply to the overflight of the territory of individual members of a group of States Parties. That subparagraph states that, when an observation flight is conducted over the territory of several members, once the maximum flight distance has been met for one member, all the sensors shall be switched off until the observation aircraft reaches the point over the territory of the next member of the group where the observation flight is planned to begin with respect to that State Party. This provision also establishes that the maximum flight distance related to the Open Skies airfield nearest to this point shall apply for the follow-on observation flights.

Paragraph 3 describes a different form of group arrangement, under which a group of States Parties is allocated a common total passive quota and common individual and total active quotas. This is the arrangement used by Russia and Belarus in forming their group.

Subparagraph (B) defines what the terms "total passive quota" and "total active quota" mean for such a group of State Parties. It also provides that the total active quota shall not exceed the total passive quota.

Subparagraph (C) states that an observation flight conducted by a group of States Parties as part of its total active quota shall be carried out on behalf of the group. This means that, regardless of which member of the group actually carries out the flight, the flight shall be deemed to be a flight conducted by the group.

Subparagraph (D) states that for observation flights that a group of States Parties is obliged to accept, i.e., its passive quota, such flights may be conducted over the territory of one or more of its members. Subparagraph (E) provides that the maximum flight distances shall be specified for the group in Section III of Annex A, and Open Skies airfields shall be designated for the group pursuant to Annex E. These flight distances and Open Skies airfields may be different, for a group formed under this paragraph, than the flight distances and Open Skies airfields established for the individual participating countries prior to the formation of such a group.

Paragraph 4 states that a State Party may raise, before the Open Skies Consultative Commission, its consideration that its rights under paragraph 3 of Section I of this Article, i.e., the right to conduct a number of observation flights over the territory of any other State Party equal to the number which that other State Party has the right to conduct over it, are unduly restricted by the operation of a group of States Parties. This provision does not alter the basic principle that any issue regarding Treaty implementation may be raised before the Commission, as provided for in Article X, paragraph 3. Paragraph 4 of this Section simply highlights an example, in deference to some States Parties that were concerned that their rights might be infringed.

Paragraph 5 requires that a group of States Parties ensures that procedures are established for permitting a single mission to be flown over the territories of its members, including any requirements for refuelling. This requirement applies to groups formed both in accordance with paragraph 2 of this Section and paragraph 3 of this Section. The intent of the provision is to permit effective and efficient operations. Provisions for such missions would not affect the quota counting rules established for these two types of groups in this Section. Paragraph 6 requires six-month pre-notification to all States Parties of: (1) changing a group established pursuant to paragraph 2 of Section II into a group established pursuant to paragraph 3; (2) changing a group established pursuant to paragraph 3 of Section II into a group established pursuant to paragraph 2; (3) withdrawal of a State Party from a group; and (4) admission of other States Parties into a group. With respect to the admission of other States Parties into a group, the provision notes that the other States Parties "hold quotas"; this language is consistent with the provision in subparagraph 1(A) of Section II of this Article, which specifies that "holding quotas" is a criterion for a member that forms part of a group of States Parties.

Paragraph 7 states that, for groups established under paragraph 3 of Section II after entry into force of the Treaty, changes in the allocation of passive quotas or distribution of active quotas resulting from the establishment of, an admission to, or a withdrawal from such a group shall become effective on January 1 following the first annual review within the Open Skies Consultative Commission after the six-month notification period required by paragraph 6 of this Section. It also provides, when necessary, that new Open Skies airfields and maximum flight distances shall be provided accordingly, i.e., within that period of time. Subparagraph 3(E) of this Section provides the basic obligation to provide such information.

Article IV—Sensors

Article IV consists of 14 paragraphs that provide the basic requirements for the sensors to be used on observation aircraft. Annex B provides the technical information associated with the categories of sensors provided for in this Article that need to be exchanged among participating States Parties, and Annex D provides the procedures for confirming the performance characteristics of those sensors during certification.

Paragraph 1 establishes the four categories of sensors with which observation aircraft may be equipped: (A) optical panoramic and framing cameras; (B) video cameras with real-time display; (C) infra-red line-scanning devices (a defined term contained in paragraph 14 of Article II); and (D) sideways-looking synthetic aperture radar. This paragraph contains a reference to paragraph 3 of this Article, which allows for the possibility of the introduction of additional categories of sensors in the future. It should be noted that, during the first three-to-four years of implementation (the phase-in period) of the Treaty, there are certain restrictions on the use of the sensors, or requirements for equipping aircraft with some of these sensors, as provided in Section II of Article XVIII.

Paragraph 2 establishes the right of a State Party to use sensors, for the purpose of conducting observation flights, from any of the four categories of sensors set forth in paragraph 1, provided that such sensors are commercially available to all States Parties and those sensors meet certain performance limits. There were two reasons for establishing performance limits: (1) to preclude any Party from using systems of such high quality that they could obtain overly intrusive data; and (2) to serve as a standard to establish the obligations of the observed Party when it requires that its own aircraft be used for an observation flight.

Subparagraph (A) describes the performance limits for optical panoramic and framing cameras, which consist of a ground resolution of 30 centimeters from a minimum height above ground level determined in accordance with Annex D, obtained from no more than one panoramic camera, one vertically mounted framing camera, and two obliquely mounted framing cameras, one on each side of the aircraft. Such cameras may provide coverage, which need not be continuous, of the ground up to 50 kilometers to each side of the flight path of the aircraft. As indicated in Annex D, the methodology for calculating ground resolution, and hence the minimum height above ground level at which a given camera may be operated, was referred to the Open Skies Consultative Commission for resolution prior to June 30, 1992.

Subparagraph (B) describes the performance limits for video cameras, which consist of a specified value of ground resolution determined in accordance with Annex D.

Subparagraph (C) describes the performance limits for infra-red line-scanning devices, which consist of a ground resolution of no better than 50 centimeters at a minimum height above ground level for a single device as determined in accordance with Annex D. As provided in Appendix 1 to Annex D, the methodology for calculating the resolution, and hence the minimum height above ground level at which a given video system or infra-red line-scanning device may operate, will be determined by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Subparagraph (D) describes the performance limits for sideways-looking synthetic aperture radar, which is ground resolution of three meters calculated by the "impulse response" method, which is the standard methodology used by the United States for calculating such values. The subparagraph also refers to the "object separation" method, which is the methodology used by Russia. Subparagraph (D) establishes that the ground resolution of three meters calculated under the "impulse response" method corresponds under the "object separation" method to the ability to distinguish on a radar image two corner reflectors, the distance between the centers of which is no less than five meters. The methodology for determining the ground resolution of a synthetic aperture radar, including the relationship between the "impulse response" method and the "object separation" method, will be worked out by the Open Skies Consultative Commission during the period of provisional application, as provided in Appendix 1 to Annex D. Other performance limits on sideways-looking synthetic aperture radar are that the swath width should be no more than 25 kilometers from a single radar unit that is capable of looking from either side of the aircraft, but not both simultaneously.

Paragraph 3 states that the introduction of additional categories of sensors and improvements to the capabilities of existing categories of sensors shall be addressed by the Open Skies Consultative Commission. Pursuant to paragraph 5 of Article X, such changes would not be deemed to be amendments to the Treaty, and therefore not subject to the provisions of Article XVI that require ratification of amendments. Examples of additional categories of sensors which Parties have considered adding are air sampling systems and multispectral systems.

Paragraph 4 requires covers over sensor apertures and, for those sensors without apertures or for which covers are not suitable, other devices that inhibit the operation of sensors. Such covers and inhibiting devices are intended to prevent collection of data during flights over third States Parties (i.e., "transit flights") or flights to points of entry or from points of exit over the territory of the observed Party. Pursuant to Article VII, the proper installation of such covers and devices shall be checked by representatives of States Parties on whose territories the observation aircraft lands en route to or from the territory of the observed Party. The proper installation of the covers and other inhibiting devices is also checked by the observed Party upon arrival and immediately prior to departure of the observation aircraft in accordance with paragraphs 10 and 19 of Section I of Article VI. Paragraph 4 also requires that the covers and other inhibiting devices shall be removable or operable only from outside the observation aircraft, to prevent surreptitious use of sensors during transit flights.

Paragraph 5 permits the presence on board the observation aircraft of equipment capable of annotating data collected by sensors. Paragraph 5 also requires that the State Party providing the observation aircraft shall annotate that data with time, locational data, and other information provided for in Annex B. The annotation of data is used to facilitate processing and use of the data and for subsequent requests by third States Parties for copies of such data, pursuant to Section IV of Article EX.

Paragraph 6 permits the presence on board the observation aircraft of equipment capable of displaying data collected by sensors in real-time for purposes of monitoring the functioning and operation of the sensors during the observation flight. Such equipment would facilitate the work of flight monitors, flight representatives, and representatives on board the observation aircraft.

Paragraph 7 prohibits the collection, processing, retransmission or recording on board the observation aircraft of electronic signals from electro-magnetic waves and the presence of equipment for such activities, unless (1) such activities or equipment are required for the operation of the sensors that are permitted to be installed in the aircraft or for the operation of the aircraft itself, or (2) such activities or equipment are otherwise permitted under paragraph 5 or 6 of this Article. The reference to electronic signals from electromagnetic waves is intended to capture all types of electro-magnetic radiation, including radio waves. The primary intent of this paragraph is to prohibit the presence or use of signals intelligence ("SIGINT") equipment on board observation aircraft.

Paragraph 8 establishes the rights of an observing Party in equipping its own aircraft. An observation aircraft provided by the observing Party, which includes aircraft that an observing Party obtains from a third State Party pursuant to paragraph 2 of Section I of Article VI, may be equipped with sensors in each sensor category specified in paragraph 1 of this Article, as long as each such sensor does not exceed the performance limit provide for in paragraph 2 of this Article. Paragraph 8 also states that the observing Party shall have the right to use an observation aircraft so equipped. An observing Party is not obligated to equip its own aircraft with sensors from each category, nor do the sensors it uses on its aircraft have to attain the minimum performance limits specified in paragraph 2 of this Article. Of course, the sensor may not exceed those limits,

Paragraph 9 establishes the obligations of an observed Party in equipping an aircraft to be used by an observing Party. An observation aircraft provided by the observed Party must be equipped with sensors from each sensor category specified in paragraph 1 of this Article and such sensors shall meet the minimum performance capabilities set forth in paragraph 2, as well as be installed in the numbers of such equipment specified in that paragraph. However, paragraph 2 of Section II of Article XVIII provides that, during the three-to-four year phase-in period, infra-red line scanning devices shall not be used, unless agreed by the observing and observed Parties. Further, paragraph 3 of Section II of Article XVIII states that. during the same period, no State Party is obliged to provide an observation aircraft equipped with more than a single optical panoramic camera or a pair of optical framing cameras, nor is that Party required to provide sensors that meet the maximum capability. Thus, if a Party chooses to exercise its "taxi" option, its only obligation during the phase-in period is to provide an aircraft with a single panoramic camera or a pair of framing cameras which can obtain imagery meeting the agreed standard of 30-centimeters ground resolution.

Paragraph 9 also requires that the sensors in such an aircraft be installed in such a way as to provide the same ground coverage as provided for in paragraph 2 of this Article. With respect to a sideways-looking synthetic aperture radar, the ground resolution must be no greater than six meters, as determined by the Russian "object separation" method. Note that subparagraph 2(D) of this Article, supra, establishes a maximum performance limit of three meters by the U.S. "impulse response" method, which is equivalent to a ground resolution of no less than five meters determined by the "object separation" method.

Paragraph 10 requires that a State Party that designates an aircraft as an observation aircraft provide all other States-Parties with the technical information on each sensor installed on the aircraft as provided for in Annex B. Such information must be provided prior to the certification of the observation aircraft and its sensors, in accordance with subparagraph 2(C) of Section I of Annex D.

Paragraph 11 states that each State Party has the right to participate in the certification of the sensors installed on observation aircraft. The procedures for the certification are contained in Annex D. This paragraph also prohibits the use of observation aircraft of that type for observation flights until that type of observation aircraft and its sensors have been certified in accordance with the provisions of Annex D.

Paragraph 12 requires that a State Party designating an aircraft as an observation aircraft provide 90-day advance notification of the removal, replacement or addition of sensors on observation aircraft and amendments to the technical information previously provided on sensors. For the purposes of this paragraph, removal does not mean a temporary removal of a broken sensor and the substitution of another sensor of the same type in its place, or the removal of a sensor for repairs and its re-installation. Such sensors could be checked during the pre-flight inspection pursuant to Annex F and during a demonstration flight. Sensors that are added or replaced shall be subject to certification in accordance with the provisions of annex D prior to their use during an observation flight.

Paragraph 13 describes remedies in the situation in which a State Party or group of State Parties, based on experience with using particular observation aircraft, consider that sensors or associated equipment on an observation aircraft do not correspond to those certified in accordance with Annex D. In such a case, the State Party that designated the aircraft shall take the steps necessary to ensure that such sensors and equipment correspond to those certified, including conducting a demonstration flight, at the request of an interested State Party. All other States Parties that have expressed concern regarding that sensor and its equipment shall have the right to send personnel to participate in the demonstration flight. The procedures for such flights are contained in Section III of Annex F. If concerns remain at the end of such procedures, this issue can be referred to the Open Skies Consultative Commission.

Paragraph 14 provides for the issue to be referred to the Open Skies Consultative Commission if not resolved as a result of the steps taken in paragraph 13. Even without this paragraph, however, this issue could be referred to the Commission, pursuant to paragraph 3 of Article X.

Article V—Aircraft designation

This Article consists of five paragraphs that describe how aircraft are designated as observation aircraft.

Paragraph 1 states that each State Party has the right to designate as observation aircraft one or more types or models of aircraft registered by the relevant authorities of a State Party. As noted in the analysis of the term "observation aircraft," there is no requirement that the State Party designating the aircraft also be the State Party that has registered it.

Paragraph 2 requires 30-day advance notification of the designation of types or models of aircraft or the addition of new types or models of aircraft. The information that is contained in such notification is specified in Annex C.

Paragraph 3 requires 90-day advance notification of the deletion of types or models of aircraft designated earlier by it. The period of 90 days allows sufficient time for State Parties that had intended to use such aircraft to make other arrangements.

Paragraph 4 establishes that, when there is more than one aircraft of a particular type and model with identical sets of associated sensors, only one such aircraft has to be certified. Pursuant to paragraph 13 of Article IV, however, other aircraft could be subject to demonstration flights if there is concern that any sensor or its associated equipment does not correspond to those certified,

Paragraph 5 requires that the aircraft designated as observation aircraft shall be capable of carrying the number of flight crew and other personnel specified in Section III of Article VI. Information on the seating capability of such aircraft must be provided pursuant to Annex C.

Article VI—Choice of observation aircraft, general provisions for the conduct of observation flights, and requirements for mission planning

Article VI consists of three sections that provide the primary rights and obligations of the States Parties with respect to the conduct of observation flights. Together with Annexes D, E, F, G and H, this Article provides the basis for the regular implementation of the Open Skies regime.

Section I of Article VI, entitled "Choice of Observation Aircraft and General Provisions for the Conduct of Observation Flights", consists of 21 paragraphs.

Paragraph 1 of Section I requires that observation flights be conducted by observation aircraft designated by a State Party pursuant to Article V. The observing Party has the right to provide the observation aircraft unless the observed Party exercises its right to provide an aircraft that it has itself designated. The observing Party may provide an aircraft that it has itself designated or an aircraft designated by another State Party. If the aircraft is provided by the observed Party, the observing Party shall have the right to an aircraft capable of achieving a minimum unrefuelled range equivalent to one-half of the flight distance notified by the observing Party for that observation flight pursuant to paragraph 5 of this Section.

Paragraph 2 provides that a State Party has the right to use an observation aircraft designated by another State Party, and establishes that arrangements for the use of such an aircraft shall be worked out by the States Parties involved, so as to allow for active participation in the Open Skies regime by all States Parties. This paragraph recognizes that, in the event an observing Party wishes to use an aircraft designated by another Party, all arrangements, including availability, schedules and terms, would have to be worked out by the Parties concerned. In this regard, the United States noted that, while it might be prepared to cooperate with other states on a case-by-case basis, the arrangements for any such collaboration had to be left flexible and open to discussion between the Parties concerned.

Paragraph 3 provides that States Parties may coordinate their plans for conducting observation flights in accordance with Annex H. The primary purpose of such coordination would be to avoid potential timing conflicts between States Parties desiring to overfly the same third Party. This right to coordinate is limited to those States Parties '"having the right to conduct observation flights," i.e., to those States Parties to which active quotas have been distributed for flights over the territory of the observed Party in question.

Paragraph 3 also establishes that no State Party shall be obligated to accept more than one observation flight at any time during the 96-hour period provided for the observation flight pursuant to paragraph 9 of this Section, unless that State Party has requested a demonstration flight, the procedures for which are contained in Section III of Annex F. In the case of such a demonstration flight, there could be an overlap of observation flights of up to 24 hours.

After receiving the notification of the results of the coordination of plans to conduct observation flights, as required by paragraph 3 of Annex H, each State Party over whose territory observation flights are to be conducted shall inform other States Parties whether it will exercise its right to provide its own aircraft for each such flight. The observed Party may not subsequently change its decision on whether it will exercise its right to provide its own aircraft for that flight. Paragraph 4 of Annex H states that such notification shall be provided within seven days of receiving the notification of the results of the coordination of plans.

Paragraph 4 requires that, no later than 90 days after signature of the Treaty, i.e., by June 22, 1992, each State Party shall provide notification to all other States Parties of: (A) the standing diplomatic clearance number for observation flights, flights of transport aircraft and transit flights; and (B) if the standard ICAO operating language—English—is not the language to be used by its personnel for all activities associated with the conduct of observation flights over its territory and for completing the mission plans and mission report, which language or languages from among the remaining five official languages (German, French, Italian, Spanish, and Russian) will be used for those purposes. The reference contained in this paragraph to the language recommended in Annex 10 of the Convention on International Civil Aviation is to English. Such notification have been provided by all States Parties.

Paragraph 5 contains requirements for the notification provided by an observing Party to an observed Party to alert the latter that the observing Party intends to conduct an observation flight over the territory of that State Party. The notification shall be provided no less than 72 hours in advance of the estimated time of arrival of the personnel of the observing Party at the point of entry of the observed Party. To reduce the need for States Parties to maintain a high degree of readiness to receive such flights at all times, the States Parties agreed to make every effort to avoid having the 72hour period fall over Saturdays and Sundays.

The notification required under paragraph 5 shall include (A) the point of entry that the observing Party would prefer to use and the Open Skies airfield from which the observation flight will commence, if the Open Skies airfield is different from the point of entry; (B) the date and estimated time of day that the personnel of the observing Party plan to arrive at the point of entry and, if needed, the date and estimated time of day that the personnel intend to depart the point of entry in order to fly to the Open Skies airfield, and an indication of the requirements of the observed Party to provide accommodations; (C) the location where the observing Party prefers that the pre-flight inspection take place, chosen from the points of entry and Open Skies airfields specified as locations where pre-flight inspections can take place by the observed Party in Appendix 1 to Annex E, and the preferred time to begin such pre-flight inspection, which, according to paragraph 4 of Sections I and II of Annex F, shall not begin until completion of formal arrival procedures; (D) the mode of transport (aircraft, train, ship, etc.) used by the personnel of the observing Party to travel to the point of entry and, if a transport aircraft is used because the observation aircraft is being furnished by the observed Party, the type and model of that aircraft; (E) the diplomatic clearance number of the observation flight or flight of the transport aircraft, which, pursuant to paragraph 4 of this Section, were provided by the observed Party shortly after Treaty signature; (F) the identification of the observation aircraft, in accordance with the data contained in Annex C; (G) the approximate distance to be flown during the observation flight, which must not exceed the maximum flight distance specified in Section III of Annex A for the point of entry or Open Skies airfield identified in subparagraph (A) of this paragraph (on the basis of this distance the observed Party, if it so chooses, can provide a type and model of an aircraft appropriate for such a distance); and (H) the names of the personnel, their gender (for purposes of accommodations), date and place of birth, passport number and issuing State Party, and the function of each individual, e.g., flight crew, flight representative, or representative.

Paragraph 6 of Section I requires the observed Party receiving the notification provided by the observing Party in accordance with paragraph 5 of this Section to acknowledge receipt of that notification within 24 hours. If the observed Party intends to provide the observation aircraft, that acknowledgment shall contain the same information regarding the observation aircraft to be provided by the observing Party pursuant to subparagraph 5(F) of this Section, i.e., the information required for its identification. Paragraph 6 also permits the observing Party to arrive at the point of entry at the estimated time of day specified in subparagraph (B) of the notification. The estimated time of day for the departure from the point of entry to the Open Skies airfield, as well as the location, date and time of day for the beginning of the pre-flight inspection, however, are subject to confirmation by the observed Party, and .the confirmation or proposed changes shall be contained in the acknowledgment.

Paragraph 7 of Section I states that among the personnel of the observing Party arriving to conduct an observation flight may be personnel designated by other States Parties pursuant to Article XIII. For example, personnel of other States Parties could be present in the event a third State Party furnished, pursuant to paragraph 2 of this Section, an observation aircraft for use by the observing Party.

Paragraph 8 of Section I requires that the observing Party notify, in addition to the observed Party, all other States Parties of its intention to conduct an observation flight. The information required to be notified is not specified in this provision, but it is understood that the same information provided to the observed Party would be provided to all other Parties. The details of this notification will be developed by the Open Skies Consultative Commission.

Paragraph 9 of Section I establishes 96 hours as the period of time from the estimated time of arrival at the point of entry until completion of the observation flight, unless otherwise agreed. If, however, the observed Party requests a demonstration flight, the 96-hour period shall be extended if additional time is needed by the observing Party to execute the mission plan. Pursuant to paragraph 3 of this Section, however, such an extension may not result in more than a 24-hour overlap of observation flights over that observed Party.

Paragraph 10 of Section I states that the observed party; shall inspect the covers of sensor apertures or other inhibiting devices upon arrival of the observation aircraft at the point of entry in order to confirm that they are in their proper position; however, the States Parties involved may agree upon another time and place for this inspection. Paragraph 6 of Annex E requires that both the observed and observing Parties carry out this inspection, and that paragraph provides locations and times for the inspection. The mission report that is completed following the observation flight includes, pursuant to paragraph 21 of this Section, the result of this inspection.

Paragraph 11 of Section I states that, for an observation aircraft provided by the observing Party, the observed Party shall have the right to carry out the pre-flight inspection at the point of entry or at the Open Skies airfield upon arrival of the observation aircraft, as provided for in Section I of Annex F. For an observation aircraft provided by the observed Party, the observing Party shall have the right to carry out the pre-flight inspection as provided for in Section II of Annex F. Such inspections shall terminate no less than 4 hours prior to the scheduled commencement of the observation flight, as set forth in the flight plan, unless the Parties agree otherwise.

Paragraph 12 of Section I requires that the flight crew of the observing Party includes at least one individual capable of communicating freely with the personnel of the observed Party and its air traffic control authorities in the language or languages the observed Party has notified pursuant to paragraph 4 of this Section.

Paragraph 13 of Section I states that the observed Party shall provide the flight crew, upon its arrival at the point of entry or the Open Skies airfield, the most recent weather forecast and air navigation information and information on flight safety, including notices to airmen. It also provides that updates of such information shall be provided by the observed Party if so requested by the flight crew. In addition, instrument procedures and information about alternate airfields along the flight route shall be provided by the observed Party once the mission plan has been approved by the Parties, The procedures for approving the mission plan are contained in Section II of this Article.

Paragraph 14 of Section I states that all observation aircraft shall be operated during observation flights in accordance with the provisions of the Treaty and in accordance with the flight plan. It further provides that such flights shall also be conducted in compliance with published standards and recommended practices of the International Civil Aviation Organization, and published national air traffic control rules, procedures and guidelines on flight safety of the observed Party. However, the ICAO standards and recommended practices, as well as the observed Part/s national air traffic control rules, procedures and guidelines on flight safety, shall be complied with only to the extent that they are without prejudice to the right of the observing Party to a mission plan that allows for the observation of any point on the entire territory of the observed Party, including areas designated by the observed party as hazardous airspace. This right is contained in paragraph 2 of Section II of this Article.

Paragraph 15 of Section I provides that observation flights shall take priority over any regular air traffic, and that air traffic control authorities of the observed Party shall facilitate the conduct of observation flights in accordance with the Treaty.

Paragraph 16 of Section I establishes that the pilot-in-command, a term defined in paragraph 17 of Article II, is the sole authority for the safe conduct of the flight and is responsible for the execution of the flight plan. The responsibility of the pilot-in-command for the execution of the flight plan is also contained in the definition of that term infra.

Paragraph 17 of Section I requires the observed Party to provide a calibration target in the vicinity of the airfield at which the preflight inspection is conducted, customary commercial aircraft fuelling and servicing for the observation aircraft and transport aircraft, meals and the use of accommodation for personnel of the observing Party, and further services to facilitate the conduct of the observation flight, as agreed with the observing Party. Locations of calibration targets are to be provided in Appendix I to Annex E. The obligation of the observed Party to provide customary commercial aircraft fuelling and servicing is limited to the specifications published about the point of entry, point of exit, Open Skies airfields, and refuelling airfields.

Paragraph 18 of Section I requires that all costs involved in the conduct of the observation flight, including the costs of the recording media and the processing of the data collected by the sensors, be reimbursed as provided for in Annex L, Section I paragraph 9.That paragraph requires the Open Skies Consultative Commission to settle, prior to June 30, 1992, the distribution of costs arising under the Treaty.

Paragraph 19 of Section I requires that the observed Party confirm that the covers for sensor apertures or other inhibiting devices are in their proper position prior to the departure of the observation aircraft from the point of exit. Such an inspection is required to preclude observation of third States Parties by those sensors during transit flights over their territories, and, pursuant to paragraph 21 of this Section, the result of this inspection must be contained in the mission, report.

Paragraph 20 of Section I requires that the observing Party depart from the point of exit no later than 24 hours following completion of the observation flight, unless otherwise agreed. Another exception to this requirement is when weather conditions or the airworthiness of the observation aircraft or transport aircraft do not permit such departure, in which case the flight shall commence as soon as practicable.

Paragraph 21 of Section I requires the observing Party to compile a mission report, which is a defined term in paragraph 26 of Article II, using the format developed by the Open Skies Consultative Commission. The report shall contain data on the date and time of the observation flight, its route and profile, weather conditions, time and location of each observation period for each Sensor, i.e. when each sensor was being operated, the approximate amount of data collected by the sensors, and the result of the inspection of covers for sensor apertures and other inhibiting devices, which is provided for in paragraphs 10 and 19 of this Section. The mission report must be signed by the observing and observed Parties at the point of exit and shall be provided by the observing Party to all other States Parties within seven days after departure of the observing Party from the point of exit.

Section II, entitled "Requirements for Mission Planning/' consists of eight paragraphs.

Paragraph 1 of Section II requires the observing Party to submit to the observed party a mission plan for the proposed observation flight. This mission plan must be submitted to the observed Party after arrival of the personnel of the observing Party at the Open Skies airfield unless otherwise agreed. The mission plan also must meet the requirements of paragraphs 2 and 4 of this Section.

Paragraph 2 of Section II establishes the right of the observing Party to conduct observation flights that permit observation of any point on the entire territory of the observed Party, including areas designated by the observed Party as hazardous airspace. With respect to the flight path of the observation aircraft—as opposed to the capability of the sensors on board the aircraft to observe a point on the territory of the observed Party—the flight path may be no closer than 10 kilometers from the border with an adjacent State that is not a State Party. Such limitation is intended to mitigate the onus that such an adjacent State would place on hold the observed State with respect to observation flights conducted close to its territory and to decrease the degree of sensor "spillover", so that the intended observation of the territory of a State Party does not lead to a significant amount of observation of the territory of that adjacent state.

Paragraph 3 of Section II permits the point of exit and the Open Skies airfield at which the observation flight terminates to be different from the point of entry and the Open Skies airfield from which the observation flight commences. The mission plan must specify the time that the observation flight will commence, the desired time and place of planned refueling stops or rest periods, and the time of continuation of the observation flight after a refueling stop or rest period, which must be within the 96-hour period specified in Section I, paragraph 9 of this Article.

Paragraph 4 of Section II requires that the mission plan include all information that is necessary to file the flight plan, which, based on the definition of "flight plan" in paragraph 25 of Article II, is in the format and has the content specified by the International Civil Aviation Organization in ICAO document 4444-RAC/501/12. Paragraph 4 also contains the following constraints on the mission plan: (A) the observation flight may not exceed the relevant maximum flight distance set forth in Annex A, Section III (the Treaty as signed incorrectly refers to Section I—the change will be made as a corrigendum); (B) the route and profile of the observation flight must satisfy observation flight safety conditions in conformity with ICAO standards and recommended practices, as required by paragraph 14 of Section I of this Article. Existing differences in national flight rules must also be taken into account, as required by paragraph 15 of Section I, but such constraints must not prejudice the provisions of paragraph 2 of this Section, i.e., that the mission plan may provide for an observation flight that allows for the observation of any point on the entire territory of the observed Party; (C) the mission plan must take into account information on hazardous airspace provided in accordance with Annex I, which requires that such information be published; (D) the height above ground level of the aircraft must not permit the observing Party to exceed the performance limits established pursuant to paragraph 2 of Article IV; (E) the estimated time of commencement of the observation flight must be no less than 24 hours after submission of the mission plan, unless otherwise agreed; (F) the observation aircraft must fly a direct route between the coordinates or navigation fixes designated in the mission plan, in the declared sequence; and (G) the flight path must not intersect at the same point more than once, unless otherwise agreed, and the observation aircraft must not circle around a single point, unless otherwise agreed, except during take-off, flight over calibration targets, and landing. The restriction on the flight path intersecting the same point more than once means that the route of the aircraft may pass over a single point twice, but may not pass over that point more than twice absent agreement of the observed Party.

Paragraph 5 of Section II requires that, for flights proposed through hazardous airspace, the observed Party shall specify the hazard to the observation aircraft, facilitate the conduct of the flight by coordination or suppression of the hazardous activity, or propose an alternative flight altitude, route or time. As provided in paragraphs 2 and 6 of this Section, however, the observed Party must permit observation of any point on its territory, and thus cannot refuse to permit observation of any such point on the grounds that the area is designated as hazardous airspace.

Paragraph 6 of Section II states that the observed Party must accept the mission plan within four hours of its submission or pro pose changes to it. Such changes must be proposed in accordance with paragraph 5 of this Section or Article Vtll, Section I, paragraph 4, In any case, such changes may not preclude observation of any point on the entire territory of the observed Party on any given flight, including areas designated as hazardous airspace. The Parties must sign the missing plan once they have agreed on it. If the Parties are unable to reach agreement on the mission plan within eight hours of submission of the original mission plan by the observing Party, the observing Party has the right to decline to conduct the flight pursuant to paragraph 5 of Article VIII, and that flight will not be charged to the quota of either Party.

Paragraph 7 of Section II states that, if the route of the flight approaches the border of other States Parties or of other States, the observed Party may notify those States of the estimated route, date and time of the flight. As provided in paragraph 2 of this Section, the flight path of the aircraft cannot be closer than 10 kilometers from the border with an adjacent State that is not a State Party.

Paragraph 8 of Section II requires the observing party, if it provides the observation aircraft, or the observed Party, if it provides the observation aircraft, to file the flight plan in coordination with the other Party. As noted supra with respect to paragraph 4 of this Section, the content and format of the flight plan shall be in accordance with ICAO rules.

Section III, entitled "Special Provisions," consists of five paragraphs that deal with personnel permitted on board observation aircrafts.

Paragraph 1 of Section III establishes the right of the observed Party when the observation aircraft is provided by the observing Party, to have on board the aircraft during the observation flight two flight monitors and one interpreter, in addition to one flight monitor for each sensor control station, unless otherwise agreed. Such personnel of the observed Party have the rights and obligations specified in Annex G. For purposes of Annex G, interpreters are considered to be flight monitors, since interpreters are not mentioned separately in that Annex.

Paragraph 2 of Section III states that, if the observing Party provides an aircraft that has a maximum take-off gross weight of not more than 35,000 kilograms and the observation flight distance is no more than 1500 kilometers, as specified in the notification provided in advance of the flight, the observed Party has the right to have only two flight monitors and one interpreter on board, unless otherwise agreed. This provision was added at the request of the Hungarian delegation that was planning to use relatively small aircraft with limited seating for shorter flights.

Paragraph 3 of Section III requires the observed Party, when it exercises its right to provide the observation aircraft, to permit personnel of the observing Party to travel to the point of entry of the observed Party in the most expeditious manner. Such travel may be, at the choice of the observing Party, by ground, sea or air transportation, including transportation by an aircraft owned by any State Party. Procedures on travel of such personnel from the point of entry to the Open Skies airfield are contained in paragraph 10 of Annex E.

Paragraph 4 of Section III establishes the right of the observing Party, when the observation aircraft is provided by the observed Party, to have on board the observation aircraft during the observation flight two flight representatives and one interpreter, in addition to one flight representative for each sensor control station on the aircraft, unless otherwise agreed. The flight representatives and interpreters have the rights and obligations set forth in Annex G. For purposes of Annex G, interpreters are considered to be flight representatives, since interpreters are not mentioned separately in that Annex.

Paragraph 5 of Section III establishes the right of the observing Party, when the observing Party provides an observation aircraft designated by a State Party other than the observing or observed Party, to have on board the aircraft during the observation flight two representatives and one interpreter, in addition to one representative for each sensor control station on the aircraft, unless otherwise agreed. In addition, the observed party has the right to have flight monitors and an interpreter on board the aircraft as set forth in paragraph 1 of this Section. Representatives and interpreters have the rights and obligations set forth in Annex G; for purposes of Annex G, interpreters are considered to be representatives, since interpreters are not mentioned separately in that Annex.

Article VII—Transit flights

Article VII consists of three paragraphs that contain provisions related to the conduct of transit flights. A transit flight, as defined in paragraph 6 of Article II, means a flight of an observation aircraft or transport aircraft over the territory of a third State Party en route to or from the territory of the observed Party. Thus, flights over the territory of States not Party to this Treaty are not covered by the provisions of this Article.

Paragraph 1 requires that transit flights originate on the territory of the observing Party or another State Party. This provision was designed to ensure that flights of Open Skies observation aircraft could not originate from the territory of non-Parties, although nothing would preclude intermediate stops on the territory of non-Parties en route to or from the territory of the observed Party. All intermediate stops on the territories of States Parties during the transit flight, between the territory of the observing Party and the territory of the observed Party, require inspection by the State Party on whose territory the aircraft has landed of sensor covers and other inhibiting devices, pursuant to paragraph 3 of this Article.

Paragraph 2 requires that each State Party accept transit flights, which means that each State Party must permit overflights of its territory by aircraft proceeding to or from the territory of the observed Party. There is a requirement, however, that such transit flights must be conducted along internationally recognized air traffic services routes, unless otherwise agreed, and in accordance with the instructions of the air traffic control authorities of each State Party whose airspace is transitted. There is also a requirement that the observing Party notify each State Party whose airspace is to be transitted at the same time that it notifies the observed Party in accordance with paragraph 5 of Section I of Article VI. The notification provided to all States Parties pursuant to paragraph 8 of that Section is not sufficient for that purpose, unless it also indicates the States Parties whose airspace would be transited.

Paragraph 3 prohibits the operation of sensors on the observation aircraft during transit flights. If the observation aircraft lands on the territory of a State Party during a transit flight, that State Party must, upon the landing of the aircraft and prior to its departure, inspect the covers of sensors and other inhibiting devices to confirm that they are in their proper position. Similar procedures are contained in paragraphs 10 and 17 of Section I of Article VI, with respect to the landing of the observation aircraft at the point of entry and the departure of that aircraft from the point of exit.

Article VIII—Prohibitions, deviations from flight plans and emergency situations

Article VIII consists of three sections that describe circumstances under which observation flights can be prohibited, the flight plan can be changed or deviated from, and the Parties are permitted to take actions related to emergencies.

Section I, entitled "Prohibition of Observation Flights and Changes to Mission Plans," consists of six paragraphs.

Paragraph 1 of Section I establishes the right of the observed Party to prohibit an observation flight that is not in compliance with the provisions of this Treaty. For purposes of this Article, the word "prohibit" means not to permit such a flight to commence. Should any disputes arise over this point, they may be raised by either Party in the Open Skies Consultative Commission after the observing Party departs the point of exit or upon completion of the observation flight, if the observed Party permitted the observing Party to conduct the observation flight after the "prohibited" portions had been modified.

Paragraph 2 of Section I establishes the right of the observed Party to prohibit an observation flight prior to its commencement if the observing Party fails to arrive at the point of entry within 24 hours after the estimated time of arrival specified in the notification provided by the observing Party pursuant to paragraph 5 of Section I of Article VI, unless otherwise agreed between the Parties. Such a provision removes the obligation of the observed Party, after the expiration of the 24-hour period, to make available personnel to handle formal arrival procedures and to conduct preflight inspection, and allows the observed Party to more efficiently manage those resources.

Paragraph 3 of Section I requires the observed Party, if it prohibits an observation flight, to state the facts for this prohibition in the mission plan. Within seven days the observed Party must provide all States Parties, through diplomatic channels, a written explanation for this prohibition in the mission report, which is provided pursuant to paragraph 21 of Section I of Article VI. This paragraph also states that an observation flight that has been prohibited, i.e., that was not permitted to be conducted, shall not be counted, shall not be counted against the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 4 of Section I describes the circumstances under which the observed Party has the right to propose changes to the mission plan within the four hours permitted the observed Party pursuant to paragraph 6 of Section II of Article VI. Those circumstances are: (A) weather conditions adversely affecting flight safety; (B) the status of the Open Skies airfield, alternate airfields, or refuelling airfields preventing their use; or (C) the mission plan being inconsistent with paragraphs 2 and 4 of Section II of Article VI, which sets forth the requirements for the mission plan.

Paragraph 5 of Section I establishes the right of the observing Party to submit alternatives if it disagrees with the changes to the mission plan proposed by the observed Party. This paragraph also establishes the right of the observing Party to decline to conduct the observation flight if agreement on the mission plan is not reached within eight hours of the submission of the original mission plan and if the observing Party considers that the changes to the mission plan proposed by the observed Party are prejudicial to its rights under the Treaty. In such case, the observation flight would not be recorded against the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 6 of Section I requires the observing Party to provide, prior to its departure from the territory of the observed Party, an explanation in the mission plan of its decision not to conduct an observation flight.

In addition, as part of the mission report provided pursuant to paragraph 21 of Section I of Article VI, the observing Party must provide an explanation that will be provided to all State Parties.

Section II, entitled "Deviations from the Flight Plan," consists of nine paragraphs.

Paragraph 1 of Section II permits deviations from the flight plan during the observation flight based on: (A) weather conditions affecting flight safety; (B) technical difficulties relating to the observation aircraft; (C) medical emergency of any person on board the observation aircraft; and (D) air traffic control instructions related to circumstances brought about by force majeure. Force majeure is generally understood in international law to mean forces beyond a State's control. This formulation was employed to prevent a situation in which an observed Party might attempt to use air traffic control instructions that are not related to forces beyond its control to force the observing Party to make a deviation from the flight plan.

Paragraph 2 of Section II permits deviations from the flight plan if weather conditions prevent effective use of optical sensors and infra-red line-scanning devices, provided that: (A) flight safety requirements are met; (B) permission is granted to do so by air traffic control authorities, if permission is required by national rules; and (C) the performance of the sensors in the event the deviation is permitted do not exceed the performance limits set forth in Article IV, paragraph 2, unless otherwise agreed.

Paragraph 3 of Section II establishes the right of the observed Party to prohibit the use of any or all sensors during a deviation that brings the observation aircraft below the minimum height above ground level for operating that sensor, i.e., the performance limits set forth in Article IV, paragraph 2. Further, if the deviation requires the observation aircraft to alter its flight plan by more than 50 kilometers from the flight path specified in the flight plan, the observed Party has the right to prohibit the use of all sensors installed on the observation aircraft beyond that 50-kilometer limit.

Paragraph 4 of Section II establishes the right of the observing Party to curtail an observation flight during its execution in the event of sensor malfunction. Pursuant to paragraph 5 of this Section, that flight would count against the active quota of the observing Party and the passive quota of the observed Party, unless the aircraft on which the sensors malfunctioned was provided by the observed Party. In that case, the observing Party has the right to decide whether the flight should or should not count against its active quota and the passive quota of the observed Party. Paragraph 4 also establishes the right of the pilot-in-command to curtail an observation flight in the event of technical difficulties affecting the safety of the observation aircraft. As noted in paragraph 16 of Section I of Article IV supra, the pilot-in-command is the sole authority for the safe conduct of the flight. If the observation flight of an aircraft provided by the observed Party is curtailed by the pilot-in command, the observing Party has the right to decide whether the flight should or should not count against its active quota and the passive quota of the observed Party. If the aircraft was provided by the observing Party, and its flight was curtailed by the pilot-in command, such flight would count against the respective quotas of the Parties.

Paragraph 5 of Section II states the general rule that if a deviation from the flight plan, as set forth in paragraph 1 of this Section, results in curtailing an observation flight, or if the observing Party or pilot-in-command curtails the flight in accordance with paragraph 4 of this Section, the observation flight shall be counted against the active quota of the observing Party and the passive quota of the observed Party. The exceptions to this general rule, which would permit the observing Party to decide whether to count the observation flight against the quotas of both Parties, consist of the following circumstances: (A) the sensor malfunction occurred on an observation aircraft provided by the observed Party; (B) the technical difficulties relating to the observation aircraft occurred on an aircraft provided by the observed Party; (C) the medical emergency that occurred was of a member of the flight crew of the observed Party or of flight monitors; or (D) air traffic control instructions were related to circumstances brought about by force majeure. Thus, where the circumstance could be directly or indirectly attributed to the observing Party or its personnel, the curtailed observation flight would count against the quotas of both Parties; where the circumstance is related to the observed Party or its personnel, the observing Party would have the choice whether to count the flight or not against the quotas.

Paragraph 6 of Section II states that the data collected by the sensors may be retained by the observing Party only if the observation flight is counted against the quotas of both States Parties. This provision presents the primary reason why an observing Party might choose to count a curtailed observation flight against its quota, even if that flight did not fully accomplish the tasks set forth in the flight plan.

Paragraph 7 of Section II requires the pilot-in-command to take action in accordance with the published national flight regulations of the observed Party in the event that a deviation from the flight plan must be made. This paragraph also provides that, once the factors leading up to the deviation have ceased to exist, the observation aircraft may continue to conduct the observation flight in accordance with the flight plan, with the permission of the air traffic control authorities. In such an event, the additional flight distance of the observation aircraft due to the deviation shall not count against the maximum flight distance set forth in Section III of Annex A.

Paragraph 8 of Section II requires that personnel of both States Parties on board the observation aircraft shall be immediately informed of all deviations from the flight plan. For purposes of this paragraph, personnel of third States Parties, such as the flight crew of an observation aircraft obtained by the observing Party from a third State Party, should be considered to be personnel of the observing Party, and shall also be informed of such deviations.

Paragraph 9 of Section II states that additional expenses resulting from provisions of Article VIII shall be reimbursed in accordance with Annex L, Section I, paragraph 9, which requires that the Open Skies Consultative Commission conclude negotiations on questions concerning reimbursement by June 30, 1992.

Section III, entitled "Emergency Situations," consists of five paragraphs.

Paragraph 1 of Section III requires the pilot-in-command to use the International Civil Aviation Organization procedures, the national flight regulations of the observed Party, and the flight operation manual of the observation aircraft in order to deal with emergency situations. ICAO procedures include those contained in Annex 2 to the Convention on International Civil Aviation, "Rules of the Air."

Paragraph 2 of Section II requires that each observation aircraft declaring an emergency be accorded the full range of distress and navigational facilities of the observed Party, so that the aircraft can land at the nearest suitable airfield. Pursuant to Article 25 of the Convention on International Civil Aviation, each State shall provide such measures of assistance to aircraft in distress in its territory as it may find practicable. In accordance with Annex 11 to the Convention on International Civil Aviation, Chapter 2, paragraph 2.18.1, an aircraft known or believed to be in a state of emergency shall be given priority over other aircraft.

Paragraph 3 of Section III provides that search and rescue operations in connection with an aviation accident involving an observation aircraft on the territory of the observed Party shall be conducted by the observed Party in accordance with its own regulations and procedures for such operations. This is consistent with international practice in this area.

Paragraph 4 of Section III requires that the investigation of an aviation accident or incident involving an observation aircraft be conducted by the observed Party in accordance with ICAO recommendations and national regulations of the observed Party, with the participation of the observing Party. Article 26 of the Convention on International Civil Aviation also contains this requirement.

Paragraph 5 of Section III requires that, if the observation aircraft is not registered with the observed Party, all wreckage and debris of the aircraft and sensors, if found and recovered, shall be returned to the observing Party or to the Party to which the aircraft belongs at the conclusion of the investigation, if so requested.

Article IX—Sensor output from observation flights

Article IX consists of four Sections that establish the basic rights and obligations of the States Parties with respect to the handling of data collected by sensors.

Section I, entitled "General Provisions," consists of five paragraphs that establish the type of recording media to be used, restrict transmission of data during the flight, prescribe special handling for the recording media, set forth permitted use of data, and permit the Parties to work out among themselves technical incompatibilities that may arise in connection with the recording media.

Paragraph 1 of Section I sets forth the type of recording media, according to the category of the sensor, that may be used to record data collected by that sensor during observation flights. The format in which such data must be recorded and exchanged on other recording media will be determined by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Paragraph 2 of Section I requires that data collected by sensors during observation flights remain on board the aircraft until completion of the observation flight. The transmission of data collected by sensors from the observation aircraft during the observation flight is prohibited.

Paragraph 3 of Section I requires that each roll of photographic film, each cassette, and each real of magnetic tape used to collect data by a sensor during an observation of the observed and observing Parties as soon as is practicable after it has been removed from the sensors.

Paragraph 4 of Section I requires that data collected by sensors during observation flights be made available to States Parties in accordance with the provisions of this Article and that such data be used exclusively for the purposes of the Open Skies Treaty. The purposes of the Open Skies Treaty can be found in the Preamble as well as in other Articles and Annexes of the Treaty.

Paragraph 5 of Section I states that, if the recording medium to be used by a State Party during an observation flight is incompatible with the equipment of another State Party, based on the data provided pursuant to Annex B, the States Parties involved must establish procedures to ensure that all data collected during observation flights can be processed, duplicated and stored by them. This affords the Parties an opportunity to make arrangements pursuant to the Open Skies Treaty to rectify the incompatibility.

Section II of Article IX, entitled "Output from Sensors That Use Photographic Film," consists of seven paragraphs that describe the processing of data collected by optical cameras.

Paragraph 1 of Section II states that, if the output from duplicate optical cameras is to be exchanged, the cameras, film, and film processing must be of an identical type,

Paragraph 2 of Section II requires the Open Skies Consultative Commission, during the period of provisions application of the Treaty, to consider the issue of whether the responsibility for the development of the original film negative from a single optical camera will be borne by the observing Party in all cases, or by the State Party providing the observation aircraft. It was agreed in the Open Skies Consultative Commission in Decision 5, infra, that they would have the right to decide which State Party would develop the film. In either case, the State Party developing the original film negative would be responsible for the quality of processing the original film negative and producing the duplicate positive or negative. If the States parties agree that the film used on an observation aircraft provided by the observed Party will be developed by the observing Party, the observed Party will bear no responsibility for the quality of the processing of the original film negative.

Paragraph 3 of Section II sets forth the time limits for developing the film: if the observed Party arranges the film processing facility, the film must be developed within three days, unless otherwise agreed, after the arrival of the observation aircraft at the point of exit; if the observing Party arranges the film processing facility, the film must be developed within ten days after the departure of the observation aircraft from the territory of the observed Party. Paragraph 4 of Section II requires the State Party developing the original film negative to permit at the developing facility up to two officials from the other State Party to monitor all steps in the handling of the original film negative. Such officials may be chosen from the nationals of that State Party located on the territory on which the film processing facility is situated; personnel from the embassy of that State Party would be likely candidates. There is a requirement in this paragraph that the State Party developing the film assist the officials of the other State Party in their functions. Procedures for monitoring the developing of film are contained in Section II of Annex K.

Paragraph 5 of Section II requires the State Party developing the film to attach a test strip on the leader or trailer of each roll of film. This test strip must be examined, after the original film negative has been processed and the duplicate film negative or positive has been produced, against the characteristics provided for the type of film in accordance with paragraph 2 of Section I of Annex K.

Paragraph 6 of Section II sets forth the allocation of the original and duplicates if only one original film negative is developed. In that case, the observing Party has the right to retain or receive the original film negative, and the observed Party has the right to select and receive a complete first generation duplicate.

Paragraph 7 of Section II sets forth the allocation of the two original film negatives if two original film negatives are developed. If the aircraft is provided by the observing Party, the observed Party has the right to select either one, with the other being retained by the observing Party. If the observation aircraft is provided by the observed Party, the observing Party has the right to select either of the original film negatives, with the one not selected retained by the observed Party.

Section III, entitled "Output from Sensors That Use Other Recording Media," consists of five paragraphs that describe the processing of data collected by sensors other than optical cameras.

Paragraph 1 of Section III requires that the State Party providing the observation aircraft record at least one original set of data collected by the sensors.

Paragraph 2 of Section III sets forth the procedures if only one original set of data is made, and gives the right of retention or receipt of the original set to the observing Party, with the observed Party receiving a first generation duplicate copy.

Paragraph 3 of Section III sets forth the allocation if two original sets of data are made. If the aircraft is provided by the observing Party, the observed Party has the right to select either of the two sets; if the observation aircraft is provided by the observed Party, the observing Party has the right to select either of the two sets.

Paragraph 4 of Section III establishes the right of the observed Party to receive the data collected by a synthetic aperture radar in the form of either initial phase information or a radar image, at its choice, if the observation aircraft is provided by the observing Party.

Paragraph 5 of Section III establishes the right of the observing Party to receive the data collected by a synthetic aperture radar in the form of either initial phase information or a radar image, at its choice, if the observation aircraft is provided by the observed Party.

Section IV, entitled "Access to Sensor Output," consists of a single paragraph, which establishes the right of each State Party to receive from the observing Party copies of data collected by sensors during an observation flight. Such copies must be in the form of first generation duplicates. The State Party requesting such copies must also notify the observed Party of its request. This paragraph also contains the content of a request for copies, and permits, inter alia, for the requesting Party to specify the portion or portions, of the observation periods during which the data was collected. This information would be identified by the requesting State Party based on the mission report, which, pursuant to paragraph 21 of Section I of Article VI, must be provided to all States Parties seven days after the completion of the observation flight.

Article X—Open Skies Consultative Commission

Article X of the Treaty consists of seven paragraphs. This Article establishes the Open Skies Consultative Commission and sets forth the general framework for its operations. The Open Skies Consultative Commission was convened on April 2, 1992, for its first session. It consists of representatives from all the States Parties and has responsibility for promoting the objectives and implementation of the provisions of the Treaty. Annex L of the Treaty, which deals with the Open Skies Consultative Commission, supplements Article X by providing specific rules and procedures for the operation of the Open Skies Consultative Commission.

Paragraph 1 sets forth the purpose of establishing the Open Skies Consultative Commission. Paragraph 1 provides that, in order to promote the objectives and facilitate the implementation of the provisions of the Treaty, the States Parties establish an Open Skies Consultative Commission.

Paragraph 2 provides that the Open Skies Consultative Commission shall take decisions and make recommendations by consensus. Paragraph 2 also provides that consensus shall be understood to mean the absence of any objection by a representative of a State Party. The purpose of this paragraph is to provide for the way decisions by the Open Skies Consultative Commission are made. The Open Skies Consultative Commission can take an action or decision only in the case that none of the representatives of the States Parties objects to a proposal for an action or decision. It therefore places the responsibility on the State Party that has an objection to a proposal to make its objection known to the Open Skies Consultative Commission because the absence any such objection will automatically result in that action or decision being adopted. In this respect, silence in response to a proposal is equated with acceptance of the proposal.

Paragraph 3 provides that each State Party shall have the right to raise before the Open Skies Consultative Commission, and have placed on its agenda, any issue relating to the Treaty, including any issue related to the case when the observed Party provides an observation aircraft. This is a "catch-all" provision to guarantee that those issues not referred to in Article X, paragraph 4,—which are those the Open Skies may specifically consider—but which fall within the scope of the Treaty, may also be considered. The second clause of the sentence, which states "including any issue related to the case when the observed Party provides an aircraft" was added at the request of a number of States concerned that problems might arise when the observed Party provides its own observation aircraft, specifically, whether the observing Party in that case is satisfied with the performance of the aircraft and sensors. The highlighting of this particular issue in no way diminishes the right of States Parties to raise any issue relating to the Treaty within the Open Skies Consultative Commission.

Paragraph 4 sets forth four tasks upon which the States Parties shall specifically concentrate within the framework of the Open Skies Consultative Commission. They are:

(A) to consider questions relating to compliance with the provisions of the Treaty;

(B) to seek to resolve ambiguities and differences of interpretation that may become apparent in the way the Treaty is implemented;

(C) to consider and take decisions on applications for accession to the Treaty; and

(D) to agree as to those technical and administrative measures, pursuant to the provisions of the Treaty, deemed necessary following the accession to the Treaty by other States.

Article X, paragraph 4(C) merits further clarification. Paragraph 4 (C) provides that the Open Skies Consultative Commission shall consider and take decisions on applications for accession to the Treaty. Article XVII of the Treaty, which deals with Depositaries, Entry into Force and Accession, sets forth specific procedures regarding the accession of States to the Treaty. Paragraph 3 of Article XVII provides that nine specified States may accede to the Treaty at any time by depositing their instruments of ratification. This is an automatic accession procedure and the Open Skies Consultative Commission will not have to consider and decide on these applications for accession. Those States are Armenia, Azerbaijan, Georgia (and will ratify rather than accede to the Treaty and the others may do so at any time prior to entry into force), Kazakhstan, Kirgystan, Moldova, Tajikistan, Turkmenistan and Uzbekistan. It should be noted that, of these States, Georgia has already signed the Treaty.

In this respect, it should also be noted that, in paragraphs 4 and 5 of Article XVII, the Open Skies Consultative Commission is tasked to consider and take decisions on the accession of States to the Treaty. Paragraph 4 provides, in pertinent part, that for six months after entry into force of the Treaty, any State, other than those mentioned in paragraph 3, participating in the Conference on Security and Cooperation in Europe may apply for accession by submitting a written request to one of the Depositaries. Paragraph 4 also provides that the matter shall be considered at the next regular meeting of the Open Skies Consultative Commission and decided in due course. Paragraph 5 of Article XVTI provides that following six months after entry into force of the Treaty, the Open Skies Consultative Commission may consider the accession to the Treaty of any State which, in the judgment of the Commission is able and willing to contribute to the objectives of the Treaty. It is in these two instances that paragraph 4(C) of Article X will apply.

Paragraph 5 provides that the Open Skies Consultative Commission may propose amendments to the Treaty for consideration and approval in accordance with Article XVI. Article XVI deals with amendments and periodic reviews of the Treaty. Paragraph 5 also provides that the Open Skies Consultative Commission may agree on improvements to the viability and effectiveness of the Treaty which are consistent with its provisions. These improvements, along with minor matters of an administrative or technical nature and which are to be agreed upon within the Open Skies Consultative Commission, shall not be deemed to be amendments to the Treaty. This paragraph also gives specific examples of matters the Open Skies Consultative Commission may act upon which are not deemed amendments to the Treaty. They are improvements relating to modification of the annual distribution of active quotas pursuant to Article III and Annex A, updates and additions to the categories or capabilities or sensors pursuant to Article IV, revision of the share of costs pursuant to Annex L, Section I, paragraph 9, and arrangements for the sharing and availability of data pursuant to Article IX, Section III and IV and to the handling of mission reports pursuant to Article IV, Section I, paragraph 21 of the Treaty.

Paragraph 5 clarifies which changes that affect the Treaty text can be dealt with solely within the framework of the Open Skies Consultative Commission and which changes must ultimately be dealt with pursuant to the amendment process described in Article XVI. This holds true even if changes that constitute amendments are initially proposed in the Open Skies Consultative Commission pursuant to this paragraph. Any change to the Treaty that is not considered a matter of an administrative or technical nature, or which does not fall into one of the categories mentioned in the above paragraph, shall be dealt with in the context of Article XVI on amendments, which are subject to the approval of all States Parties and then to ratification by each State Party in accordance with its domestic procedures. It should be noted that minor matters may include correcting typographical or conforming errors ("corrigenda") in the Treaty text.

Paragraph 6 provides that the Open Skies Consultative Commission shall request use of the facilities and administrative support of the Conflict Prevention Center of the Conference on Security and Cooperation in Europe, or other existing facilities in Vienna, unless it decides otherwise. This paragraph reflects the preference of States Parties that the Commission meet in Vienna, taking advantage both of existing local infrastructure and the permanent presence of delegations from most of the participating States. At the same time, the paragraph leaves open the specific choice which the Commission may make regarding facilities and administrative support. The text makes clear that the choice of facilities and support rests with the Open Skies Consultative Commission.

In this respect, it should be noted that the States Parties decided that the initial session of the Open Skies Consultative Commission would meet in the same facilities used during the Open Skies negotiations. This provided a temporary solution pending the decision by the Commission on the question in paragraph 6 of Article X as to the facilities and administrative support that will be used for the Open Skies Consultative Commission on a permanent basis.

Paragraph 7 states that provisions for the operation of the Open Skies Consultative Commission are set forth in Annex L of the Treaty.

It should be noted that several provisions of Article X have been applied provisionally between signature and entry into force of the Treaty pursuant to Article XVIII, Section I, paragraph 1 of the Treaty. Those provisions in Article X that are provisionally applied are paragraphs 1, 2, 3, 6 and 7. In addition, Annex L, Section I of the Treaty has also been applied provisionally. The provisional application of these provisions allowed the Open Skies Consultative Commission to begin its operations immediately upon Treaty signature.

Article XINotifications and reports

Article XI deals with notifications and reports. It consists of one paragraph and provides that the States Parties shall transmit notifications and reports required by the Treaty in written form. Article XI also provides that the States Parties shall transmit such notifications and reports through traditional diplomatic channels or, at their choice, through other official channels, such as the communications network of the Conference on Security and Cooperation in Europe.

The Treaty provides for a number of cases when States Parties must notify other States Parties of events that arise out of rights and obligations established by the Treaty. During the negotiation of the Treaty, delegations began the task of listing required notifications and reports of the Treaty. They also provided examples of related formats for these notifications and reports. It was agreed that this work would be continued and finalized within the Open Skies Consultative Commission during the period of provisional application of the Treaty.

In this respect, Annex L, Section I, paragraph 10 provides that, during the period of provisional application, the Open Skies Consultative Commission shall develop a document relating to notifications and reports required by the treaty. Paragraph 10 further provides that this document shall list all such notifications and reports and shall include appropriate formats as necessary. All such notifications and reports shall be in written form, as specified in Article XI.

Highlighting the communications network of the Conference on Security and Cooperation in Europe in the Article reflects the fact that it is one channel that can fulfill all the communications needs noted in Article XI.

It should be noted that Article XI has been applied provisionally between signature and entry into force of the Treaty pursuant to Article XVII, Section I, paragraph 1.

Article XII—Liability

Article XII, which consists of one paragraph, provides that a State Party shall, in accordance with international law and practice, be liable to pay compensation for damage to other States Parties, of to their natural or judicial persons or their property, caused by it in the course of the implementation of the Treaty.

This Article is the result of the desire of some delegations during the negotiations to address the issue of liability in connection with aircraft accidents that may occur during the implementation of the Treaty. There was concern expressed by some delegations that without such a provision, the issue of liability would remain open to different interpretation. At the same time, it was the view of other delegations that if the issue of liability were to be addressed in the Treaty, whether in a separate Article or within another Article or Annex, the issue should be addressed in a brief manner, and that the text should not have the effect of altering existing international law and practice.

This Article reflects these concerns. It states that any State Party which causes damage to another State Party or their natural or judicial persons or to their property will be liable to pay compensation to the extent provided for by existing international law and practice. The important clause in the Article states "in accordance with international law and practice." This phrase is meant to emphasize that issues of liability arising from an airplane accident during the implementation of the Treaty are to be resolved on the basis of principles already established in international law and practice. Therefore, the Article does not change, in any way, existing international law and practice as it regards liability occurring under this Treaty.

Article XIII—Designation of personnel and privileges and immunities

Article XIII of the Treaty provides for the designation of those individuals who will carry out the implementation of the Treaty on the territories of other States Parties and for the privileges and immunities which they will be accorded for the purposes of the Treaty.

Section I of Article XIII consists of three paragraphs. It provides for the designation of personnel who will carry out the duties relating to the Treaty. All such personnel must be officially designated in accordance with this Section. Thus, States Parties are not obligated to receive personnel from another State Party who have not been designated by a State Party. Also, the section makes clear that designated personnel must be acceptable to the other States Parties.

Paragraph 1 of Section I provides that each State Party shall, at the same time that it deposits its instrument of ratification to either of the Depositaries, provide to all other States Parties, for their review, a list of designated personnel who will carry out all duties relating to the conduct of observation flights for that State Party, including monitoring the processing of the sensor output. Paragraph 1 also provides that no such list of designated personnel shall include more than 400 individuals at any time. Paragraph 1 further provides that the list shall contain the name, gender, date of birth, place of birth, passport number, and function (for example, aircrew member or flight representative) for each individual included. Finally, paragraph 1 provides that each State Party shall have the right to amend its list of designated personnel until 30 days after entry into force of the treaty and once every six months thereafter.

Paragraph 1 makes clear that the designated list of personnel can never, at any time, exceed 400 individuals. Therefore, the list at any one time may be less than 400 and, during the implementation of the Treaty, the list may be altered as it reaches 400 so as not to exceed that limit. However, the time limit placed on the States Parties' right to amend the list is to prevent a multitude of amendments to the list at different times by each State Party. With the time limit, the amendments will occur on a timely basis but also only at regular intervals. This will make it easier for domestic agencies to issue visas and other necessary documents to individuals who will be designated and accepted by the States Parties.

Paragraph 2 of Section I provides that in the event any individual included on the original list or any amended list is unacceptable to a State Party reviewing the list, that State Party shall, no later than 30 days after receipt of each list, notify the State Party providing the list that such individual shall not be accepted by the objecting State Party. Paragraph 2 also provides that individuals not declared unacceptable within that 30-day period shall be deemed accepted. Paragraph 2 further provides that in the event a State Party subsequently determines that an individual is unacceptable, that State Party shall so notify the State Party that designated such individual. Finally, paragraph 2 provides that individuals who are declared unacceptable shall be removed from the list previously submitted to the objecting State Party.

According to paragraph 2, a State Party has the right to delete the name of an individual from a list provided by another State Party at any time. A State Party may delete the name from a list of personnel either within 30 days after receipt of each list or at any time subsequent to the 30 days after receipt of the list. Therefore, a State Party is assured that an individual it objects to can be deleted at any time from a list provided by any other state Party. However, if one State Party requests deletion of an individual from a list, that does not preclude that individual from being accepted by other States Parties.

Thus, a situation could arise in which, for example, State Party X accepts an individual whom State Party Y has refused to accept (acceptance of an individual is automatic if no objection is made to that individual). If that individual came to State Party X for the purpose of carrying out the conduct of observation flights, including monitoring the processing of the sensor output, State Party X would be obligated to allow that individual onto their territory. However, the State Party Y could prevent that same individual from carrying out the conduct of observation flights, including monitoring the processing of the sensor output, on State Party Y territory. Lastly, it should be noted that while the original list and any amended list of designated personnel are subject to review, requested deletions are not subject to such review.

Paragraph 3 of Section I provides that the observed Party shall provide visas and any other documents as required to ensure that each accepted individual may enter and remain on the territory of that State Party for the purpose of carrying out duties relating to the conduct of observation flights, including monitoring the processing of the sensor output. This paragraph makes clear that the obligation to provide visas and other documents applies only with respect to those personnel which have been accepted in accordance with paragraph 2 of Section I of this Article.

Paragraph 3 further provides that each State Party has three options with respect to the provision of visas and other necessary documents. They may be provided either:

(A) no less than 30 days after the individual is deemed to be accepted, in which case the visa shall be valid for a period of no less than 24 months;

(B) no later than one hour after the arrival of the individual at the point of entry, in which case the visa shall be valid for the duration of that individual's duties; or

(C) at any other time, by mutual agreement of the States parties involved.

It should be noted that both paragraphs 1 and 2 of this Section are applied provisionally pursuant to Article XVIII, Section I, paragraph 1 of the Treaty. However, the mechanisms of paragraph 1, and therefore paragraph 2, do not come into play for an individual State Party until it has deposited its instruments of ratification to either of the Depositaries, at which time the State Party must simultaneously provide its list to all other States Parties. Paragraph 3 has not been provisionally applied.

Section II of Article XIII sets forth the privileges and immunities that the States Parties must accord to designated and accepted personnel who are engaged in activity pursuant to the Treaty. The purpose of such privileges and immunities is to ensure that designated personnel may carry out their duties efficiently and without interference. The privileges and immunities set forth in Section II are largely based on the Vienna Convention on Diplomatic Relations of April 18, 1961, hereinafter referred to as the Vienna Convention, of which the United States is a party (Vienna Convention on Diplomatic Relations, done at Vienna on April 18, 1961, 23 UST 3227, 500 UNTS 95). The Vienna Convention is the primary international agreement governing such privileges and immunities. The privileges and immunities set forth in Article XIII, Section II apply to designated personnel while in transit, during the period on the territory of another State Party, and thereafter with respect to acts performed during the course of their official duties.

Paragraph 1 of Section II provides that in order to exercise their functions effectively, for the purpose of implementing the Treaty and not for their personal benefit, personnel designated in accordance with the provisions of Section I, paragraph 1 of this Article shall be accorded the privileges and immunities enjoyed by diplomatic agents pursuant to the following Articles of the Vienna Convention:

(A) Article 29;

(B) Article 30, paragraph 2;

(C) Article 31, paragraphs I, 2, and 3;

(D) Article 34; and (E) Article 35.

Paragraph 1 of Section II also states that designated personnel shall be accorded the privileges enjoyed by diplomatic agents pursuant to Article 36, paragraph 1, subparagraph (B) of the Vienna Convention, except in relation to articles, the import or export of which is prohibited by law or controlled by quarantine regulations.

Article 29 of the Vienna Convention provides: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

Paragraph 2 of Article 30 of the Vienna Convention provides: "His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property shall likewise enjoy inviolability."

Paragraphs 1, 2, and 3 of Article 31 of the Vienna Convention provide:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purpose of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; and

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obligated to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

Article 34 of the Vienna Convention provides that:

A diplomatic agent shall be exempt from all dues and municipal, except:

(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purpose of the mission;

(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39 (of the Vienna Convention);

(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

(e) charges levied for specific services rendered; and

(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23 (of the Vienna Convention).

Article 35 of the Vienna Convention provides that:

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 36, subparagraph 1(b) provides that:

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on: . . . (b) articles for the personal use of a diplomatic agent or members of his family forming part of the household, including articles intended for his establishment.

Paragraph 3 of Section II provides that the immunity from jurisdiction may be waived by the observing Party in those cases when it would impede the course of justice and can be waived without prejudice to the Treaty. Paragraph 3 also provides that the immunity of personnel who are not nationals of the observing Party may be waived only by the States Parties of which such personnel are nationals. This provision is important because the observing Party may be composed of designated personnel of different nationalities. Finally, paragraph 3 provides that waiver of immunity must always be express (rather than implied),

Paragraph 4 of Section II provides that without prejudice to their privileges and immunities or the rights of the observing Party set forth in the Treaty, it is the duty of designated personnel to respect the laws and regulations of the observed Party.

Paragraph 5 of Section II provides that the transportation means of the personnel shall be accorded the same immunities from search, requisition, attachment or execution as those of a diplomatic mission pursuant to Article 22, paragraph 3 of the Vienna Convention, except as otherwise provided for in the Treaty. Article 22, paragraph of the Vienna Convention provide that:

The provisions of the mission, their furnishings, and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article XIV—Benelux

Article XIV is the Benelux Article. It consists of two paragraphs. Paragraph 1 of Article XIV provides that solely for the purposes of Articles II to IX and Article XI, and of Annexes A to I and Annex K to the Treaty, the Kingdom of Belgium, the Grand Duchy of Luxembourg, and the Kingdom of the Netherlands shall be deemed a single State Party, hereinafter referred to as the Benelux.

Article XIV applies only to certain Articles and Annexes of the Treaty. They are Annexes are Article II to IX and Article XI, and Annexes A to I and Annex K. It excludes, for example, Article X on the Open Skies Consultative Commission. Therefore, in the proceedings of the Open Skies Consultative Commission, the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands will be deemed separate States Parties. They are viewed as separate State Parties while considering issues and taking actions and decisions in the Open Skies Consultative Commission. Therefore, actions and decisions taken by them in the Open Skies Consultative Commission do not have to be made by all of them in unison. Article XIV similarly does not apply to Annex L (which provides for the procedural and administrative aspects of the Open Skies Consultative Commission).

Article XTV does, for example, apply to Article V. As a case in point, Article V, paragraph 1 provides that each State Party shall have the right to designate as observation aircraft one or more types or models of aircraft registered by the relevant authorities of a State Party. In this respect, the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands that form a single Party, the Benelux, may designate observation aircraft together and may not designate aircraft as separate States Parties since "each State Party" as referred to in this case refers to all three of those States as a single State Party.

Paragraph 2 provides that without prejudice to the provisions of Article XV, the above-mentioned State Parties may terminate this arrangement by notifying all other States Parties thereof.

Article XV is the Article on Duration and Withdrawal. It is referenced in paragraph 2 of Article XIV to make clear that the two provisions regarding termination of the Benelux arrangements and the right of, for example, the Kingdom of Belgium to withdraw from the Treaty are to be understood as separate and distinct actions and one does not necessarily prejudice the other. For example, if the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands decide to terminate their single State Party arrangement, this act will not mean they are withdrawing from the Treaty, either as a single State Party or as the Benelux. To withdraw from the Treaty, those States Parties must act in accordance with the provisions set forth in Article XV.

Paragraph 2 also provides that the arrangement shall be deemed terminated on the next December 31 following the 60-day period after such notification.

Finally, it should be noted that Article XIV has been applied provisionally pursuant to article XVII Section I, paragraph 1(E). Therefore, the Kingdom of Belgium, the Grand Duchy of Luxembourg, and the Kingdom of the Netherlands are presently referred to as the Benelux. However, of the Articles and Annexes that apply to the Benelux arrangement, only Article VI, Section I, paragraph 4 and Article XI are provisionally applied.

Article XV—Duration and Withdrawal

Article XV of the Treaty deals with the duration of and the procedures of withdrawal from the Treaty. It consists of three paragraphs.

Paragraph 1 provides that the Treaty shall be of unlimited duration. The purpose of this paragraph is to make clear that the States Parties did not envision a date for the termination of the Treaty.

Paragraph 2 provides that a State Party shall have the right to withdraw from the Treaty. Paragraph 2 also provides that a State Party intending to withdraw shall provide notice of its decision to withdraw to either Depositary at least six months in advance of the date of its intended withdrawal and to all other States Parties. There is no requirement for the withdrawing State Party to provide an explanation for its withdrawal. Paragraph 2 further provides that the Depositaries shall promptly inform all other States Parties of such notice.

Paragraph 3 provides that in the event State Party gives notice of its decision to withdraw from the Treaty in accordance with paragraph 2 of this Article, the Depositaries shall convene a conference of the States Parties no less than 30 days and no more than 60 days after they have received such notice, in order to consider the effect of the withdrawal on the Treaty.

The duties of the Depositories noted in paragraphs 2 and 3 of this Article are also listed in Article XVII, paragraph 7 of the Treaty. Article XVII deals with the Depositories, Entry into Force and Accession. Paragraph 7 of Article XVII lists the duties of the Depositaries of the Treaty.

Article XVI—Amendments and periodic review

Article XVI deals with amendments to the Treaty and the periodic review of the implementation of the Treaty. Article XVI consists of three paragraphs.

Paragraph 1 provides that each State party shall have the right to propose amendments to the Treaty and that the text of each proposed amendment shall be submitted to either Depositary (Canada or the Republic of Hungary), which shall circulate it to all States Parties for consideration. Paragraph 1 also provides that, if so requested by no less than three States Parties within a period of 90 days after circulation of the proposed amendment, the Depositaries shall convene a conference of the States Parties to consider the proposed amendment. Paragraph 1 further provides that such a conference shall open no earlier than 30 days and no later than 60 days after receipt of the third of such requests.

Paragraph 1 establishes a threshold for the number of requests necessary for convening a conference to consider a proposed amendment. Such a conference, while likely to be useful for a majority of cases, does not constitute a prerequisite for the approval of amendments.

Paragraph 2 provides that an amendment to the Treaty shall be subject to the approval of all States Parties, either by providing notification, in writing, of their approval to a Depositary within a period of 90 days after circulation of the proposed amendment, or by expressing their approval at a conference convened in accordance with paragraph 1 of this Article. Paragraph 2 also provides that an amendment so approved shall be subject to ratification in accordance with the provisions of Article XVII, paragraph I, and shall enter into force 60 days after the deposit of instruments of ratification by all of the States Parties. Article XVII, paragraph 1 provides, in pertinent part, that the Treaty shall be subject to ratification by each State Party in accordance with its constitutional procedures.

In sum, five steps must be accomplished before an amendment may enter into force. First, the amendment must be proposed either by a State Party, submitted to a Depositary, and then circulated to all States Parties, or by the Open Skies Consultative Commission pursuant to Article X, paragraph 5 of the Treaty. Second, the proposed amendment must be considered by the States Parties, either in the context of an amendment conference, within the framework of the Open Skies Consultative Commission, or individually by the States Parties themselves. Third, the proposed amendment must be approved by all States Parties. Fourth, the approved amendment must then be ratified by all States Parties. Fifth, instruments of ratification must be deposited with a Depositary and 60 days thereafter it enters into force.

Article X, paragraph 5 provides the standard by which to judge whether a proposed change to the Treaty should be handled as an amendment in accordance with Article XVI or treated as a measure to enhance the viability and effectiveness of the treaty and not requiring an amendment in accordance with Article X. Article X, paragraph 5 provides, in pertinent part, that the Open Skies Consultative Commission may agree on improvements to the viability and effectiveness of the Treaty, consistent with its provisions. The standard is whether the proposed change relates to the specific points listed in that paragraph or to other matters of an administrative or technical nature. If a proposed change does not meet either of these tests, it must be treated as an amendment. In case of doubt, any decision as to whether a proposed change must be handled as an amendment must be made on the basis of consensus among the States Parties pursuant to Article X, paragraph 2, which provides in part that the Open Skies Consultative Commission shall take decisions or make recommendations by consensus. Paragraph 2 also provides that consensus shall be understood to mean the absence of any objection by any State Party to the taking of a decision or the making of a recommendation.

Paragraph 3 provides that unless requested to do so earlier by no less than three States Parties, the Depositaries shall convene a conference of the States Parties to review the implementation of the Treaty three years after entry into force of the Treaty and at five-year intervals thereafter. In addition to this schedule of review conferences that will be periodically convened, this paragraph provides for a mechanism whereby a review conference can be convened at any time. However, no less than three States Parties must request that an earlier conference be convened.

Finally, the duties of the Depositaries noted in paragraphs 1 to 3 of this Article are also listed in Article XVII, paragraph 7. Article XVII deals in detail with the Depositaries, Entry into Force and Accession. Paragraph 7 of Article XVII lists the duties of the Depositaries of the Treaty.

Article XVII—Depositaries, entry into force and accession

Article XVII of the Treaty deals with the duties of the, the ratification and entry into force of the Treaty, and the accession of other States to the Treaty. Article XVII consists of seven paragraphs.

Paragraph 1 provides that the Treaty shall be subject to ratification by each State Party in accordance with its constitutional procedures. Paragraph 1 also provides that instruments of ratification and instruments of accession shall be deposited with the Government of Canada or the Government of the Republic of Hungary or both, which are designated the Depositaries. Paragraph 1 further provides that the Treaty shall be registered by the Depositaries pursuant to Article 102 of the Charter of the United Nations.

Paragraph 1 specifies two steps that must be taken before the Treaty can enter into force. The first is that the Treaty must be ratified by each State Party in accordance with its constitutional procedures. The Treaty does not attempt to specify such procedures for each State Party.

The requirement is that once the Treaty has been ratified, the instruments of ratification must be deposited with at least one Depositary.

Paragraph 2 provides that the Treaty shall enter into force 60 days after the deposit of 20 instruments of ratification, including those of the Depositaries, and of States Parties whose individual allocation of passive quotes as set forth in Annex A is eight or more.

Paragraph 2 thus establishes three specific requirements before the Treaty can enter into force. The first is the deposit of 20 instruments of ratification. This number compares with the twenty-four States that participated in the actual negotiations, the 25 States that signed the Treaty on March 24 in Helsinki, and the 33 potential signatories if all of the newly independent States that have emerged on the territory of the former Soviet Union decide to sign prior to entry into force. The above-mentioned requirement for the deposit of 20 instruments of ratification prior to entry into force can be met by any of these States.

The second requirement mentioned in paragraph 2 that must be fulfilled before the Treaty can enter into force is that both Depositaries ratify the Treaty and deposit their instruments of ratification. It is considered likely that the Depositaries, Canada and the Republic of Hungary, will be among the first twenty States to ratify the Treaty.

The third requirement that must be fulfilled before the Treaty can enter into force is that of the 20 States Parties mentioned in paragraph 2, all States Parties whose individual allocation of passive quotas as set forth in Annex A is eight or more must be included. This is a requirement for entry into force because the States negotiating the Treaty desired a guarantee that the Treaty will not enter into force without the participation of the largest States Parties. Those States Parties with an individual allocation of passive quota as set forth in Annex A of eight or more are:

(1) The Federal Republic of Germany (8);

(2) the United States (42);

(3) the Republic of Belarus and the Russian Federal group of States Parties (42);

(4) Canada (12);

(5) the French Republic (12);

(6) the United Kingdom of Great Britain and Northern Ireland (12);

(7) the Italian Republic (12);

(8) the Republic of Turkey (12); and

(9) Ukraine (12).

Therefore, of the 20 States Parties that must ratify the Treaty and deposit instruments of ratification, the above nine States Parties (and Hungary) must be included before the Treaty can enter into force.

Paragraph 3 provides that the Treaty shall be open for signature by Armenia, Azerbaijan, Georgia, Kazakhstan, Kirgystan, Moldova, Tajikistan, Turkmenistan and Uzbekistan and shall be subject to ratification by them. Paragraph 3 also provides that any of these States which do not sign the Treaty before it enters into force in accordance with the provisions of paragraph 2 of Article XVII may accede to it at any time by depositing an instrument of accession with one of the Depositaries.

Paragraph 3 thus provides for two ways in which the States mentioned in that paragraph may become States Parties to the Treaty. The Treaty lists only those nine States as authorized to sign the Treaty prior to entry into force. This provision was included because of the desire of all participants to facilitate the participation in Open Skies of all the States of the former Soviet Union.

Paragraph 4 provides that for six months after entry into force of the Treaty, any other State participating in the Conference on Security and Cooperation in Europe may submit a written request for accession to one of the Depositaries. Paragraph 4 also provides that the Depositary receiving such a request shall circulate it promptly to all States Parties. Paragraph 4 further provides that the States requesting to accede may also, if they so wish, request an allocation of a passive quota and the level of this quota. Finally, paragraph 4 provides that the matter shall be considered at the next regular meeting of the Open Skies Consultative Commission and decided in due course.

Paragraph 4 focuses on those States, other than those mentioned in paragraph 3, who participate in the Conference on Security and Cooperation in Europe, but are not among the original signatories to the Open Skies Treaty. It should be read in connection with paragraph 5, which sets forth the procedures for accession to the Treaty by any State beginning after the expiration of the period of six months after entry into force. The intention was to highlight the desire of many participants that States participating in the Conference on Security and Cooperation in Europe should be able to accede to the Open Skies Treaty as soon as possible. The paragraph should not be interpreted to read that such States can apply for accession to the Treaty only within the six months after entry into force, the initial time in which those States can apply for accession to the Treaty. They may also apply for accession to the Treaty at any time thereafter.

Paragraph 4 also states that the matter shall be considered in the Open Skies Consultative Commission at the next regular session and decided in due course. The matter to be considered includes both the request for accession and the allocation of a passive quota. The paragraph leaves open the amount of time the Open Skies Consultative Commission may deliberate before it must decide on the matter.

Though the requesting States may request an allocation of a passive quota and the level of this quota simultaneous with its application for accession, the Open Skies Consultative Commission is not obligated to consider the request or an allocation and level of the quota until the application for accession has been accepted, and the instrument of accession has been deposited with one of the Depositaries. This sequence is pursuant to Annex A, Section I, paragraph 2 of the Treaty which provides in part that an allocation of a passive quotas to such a State be considered during the next regular session of the Open Skies Consultative Commission following the date of deposit of its instrument of ratification or accession.

Paragraph 5 provides that following six months after entry into force of the Treaty, the Open Skies Consultative Commission may consider the accession to the Treaty of any State which, in the judgment of the Commission, is able and willing to contribute to the objectives of the Treaty.

Paragraph 5 provides for the possible participation in Open Skies of any State, regardless of its participation or non-participation in the Conference on Security and Cooperation in Europe. Applications under the provisions of paragraph 5 can only be considered beginning six months after the Treaty has entered into force. By contrast, those States listed in paragraph 3 have no time constraint, and those States specified in paragraph 4 can apply within the first six months after entry into force as well as thereafter.

Paragraph 5 also includes a further procedure not applied to accession under the provisions of paragraph 3 and 4. Paragraph 5 provides that the Open Skies Consultative Commission must make a judgment that States applying for accession under this paragraph for accession to the Treaty are able and willing to contribute to the objectives of the Treaty. In practice, since the "able and willing clause is otherwise undefined, the paragraph effectively requires only that there be a consensus in the Open Skies Consultative Commission on any application for accession under the provisions of this paragraph, as there must be on any application for accession.

Paragraph 6 provides that, for any State that has not deposited an instrument of ratification by the time of entry into force, but that subsequently ratifies or accedes to the Treaty, the Treaty shall enter into force for that State 60 days after the date of deposit of its instrument of ratification or accession. This paragraph makes clear that for those States Parties that signed the Treaty on March 24, 1992 and for those that are listed in paragraph 3 which sign the Treaty prior to entry into force, but that may not yet have ratified the Treaty when it enters into force, the Treaty shall enter into force for those States Parties 60 days after the deposit of their instrument of ratification. It also provides the same time frame for which the Treaty shall enter into force for any State that accedes to the Treaty, i.e., 60 days after the deposit of its instrument of accession.

Paragraph 7 sets forth duties of the Depositaries. As the Depositaries, the Government of Canada and the Government of the Republic of Hungary are responsible for informing all States Parties of:

(A) the date of deposit of each instrument of ratification and the date of entry into force of the Treaty;

(B) the date of an application for accession, the name of the requesting State and the result of the procedure;

(C) the data of deposit of each instrument of accession and the date of entry into force of the Treaty for each State that subsequently accedes to it;

(D) the convening of a conference pursuant to Articles XV and XVI;

(E) any withdrawal in accordance with Article XV and its effective date;

(F) the date of entry into force of any amendments to the Treaty; and

(G) any other matters of which the Depositaries are required by the Treaty to inform the State Parties.

Article XVIII—Provisional application and phasing of implementation of the Treaty

Article XVIII deals with the provisional application of certain provisions of the Treaty and the phasing of implementation of the Treaty. The introduction of the Article provides that in order to facilitate the implementation of the Treaty, certain of its provisions shall be provisionally applied and others shall be implemented in phases.

Section I addresses the provisional application of particular provisions of the Treaty and consists of two paragraphs. The purpose of the Section is to put into effect upon signature of the Treaty, on a temporary basis, certain provisions of the Treaty. Such provisional application confers legal rights and obligations upon the States Parties. On the one hand, provisional application requires the States Parties to comply with the provisions so applied to the strict letter of the law even though the Treaty as a whole has not yet entered into force. On the other hand, such provisional application also enables States Parties to take full advantage of the benefits offered by such provisional applied provisions. In short, provisional application means that provisions so applied are legally enforceable upon signature of the Treaty rather than upon its entry into force.

Paragraph 1 of Section I lists those provisions of the Treaty and its Annexes that are being provisionally applied. The paragraph provides that the list of provisions are provisionally applied with- out detriment to Article XVII of the Treaty. The purpose of the language in paragraph 1 which references Article XVII is to make clear that the provisional application of the listed provision in no way affects any of the provisions of Article XVII, which deals with Depositaries, entry into force, and accession to the Treaty.

The provisions that are to be applied provisionally are as follows:

(A) Article VI, Section I, paragraph 4;

(B) Article X, paragraphs 1, 2, 3, 6, and 7;

(C) Article XI;

(D) Article XIII, Section I, paragraphs 1 and 2;

(E) Article XIV; and

(F) Annex L, Section I.

The above provisions have been applied provisionally since March 24, 1992.

Subparagraph (A) of paragraph 1 of Section I of this Article provides that Article VI, Section I, paragraph 4 of the Treaty is to be applied provisionally. Paragraph 4 of Section I of Article VI provides that no later than 90 days after signature of the Treaty, i.e., June 22, 1993, each State Party shall provide notification to all other States Parties:

(A) of the standing diplomatic clearance number for Open Skies observation flights, flights of transport aircraft and transit flights; and

(B) of which language or languages of the Open Skies Consultative Commission specified in Annex L, Section I, paragraph 7 to the Treaty shall be used by personnel for all activities associated with the conduct of observation flights over its territory, and for completing the mission plan and mission report, unless the language to be used is the one recommended in Annex 10 to the Convention on International Civil Aviation, Volume II, paragraph 5.2.1.1.2.

Article VI, Section I, paragraph 4(A) and (B) are being applied provisionally so that this information will be available to all other participants for planning purposes.

Subparagraph (B) of paragraph 1 of Section I of this Article provides that Article X, paragraphs 1, 2, 3, 6, and 7 of the Treaty are to be applied provisionally. Article X deals with the Open Skies Consultative Commission.

Article X. paragraph 1 provides that in order to promote the objectives and to facilitate the implementation of the provisions of the Treaty, the States Parties establish an Open Skies Consultative Commission. Paragraph 1 was applied provisionally so that the Open Skies Consultative Commission could begin operations immediately after signature of the Treaty. The first session of the Open Skies Consultative Commission opened on April 2, 1992.

Article X, paragraph 2 provides that the Open Skies Consultative Commission shall take decisions or make recommendations by consensus. Paragraph 2 also provides that consensus shall be understood to mean the absence of any objection by any State Party to the taking of a decision or the making of a recommendation. This paragraph establishes the principle that the Open Skies Consultative Commission is to make decisions, it was necessary to apply this paragraph provisionally to guarantee that decisions made by the Open Skies Consultative Commission during the provisional application of the Treaty, pursuant to Article XVIII, will be valid.

Article X, paragraph 3 provides that each State Party shall have the right to raise before the Open Skies Consultative Commission, and have placed on its agenda, any issue relating to the Treaty, including any issue related to the case when the observed Party provides an observation aircraft. This paragraph is provisionally applied to allow for States Parties, during the provisional application period, to raise before the Open Skies Consultative Commission any issue regarding the Treaty they wish to have addressed.

However, it should be noted that Article X, paragraph 4. which addresses specific issues the Open Skies Consultative Commission shall consider, has not been provisionally applied. These issues are to: (A) consider questions relating to compliance with the provisions of the Treaty; (B) seek to resolve ambiguities and differences of interpretation that may become apparent in the way the Treaty is implemented; (C) consider and take decisions on applications for accession to the Treaty; and (D) agree to those technical and administrative measures, pursuant to the provisions of the Treaty, deemed necessary following the accession to the Treaty by other States.

Article X, paragraph 6 provides that the Open Skies Consultative Commission shall request the use of the facilities and administrative support of the Conflict Prevention Center of the Conference on Security and Cooperation in Europe, or other existing facilities in Vienna, unless it decides otherwise.

This paragraph is provisionally applied to empower the Open Skies Consultative Commission to make decisions regarding facilities and administrative support at any time once it had begun meeting. This issue was on the agenda for the initial session of the Open Skies Consultative Commission.

Article X, paragraph 7 provides that provisions for the operation of the Open Skies Consultative Commission are set forth in Annex L to the Treaty. This paragraph provides the link between Article X and Annex L, Section I, which provides for the administrative and procedural aspects of the Open Skies Consultative Commission. Since the Open Skies Consultative Commission is empowered to meet during the period of provisional application, this provision referring to Annex L, Section I, which is also provisionally applied, is thereby provisionally applied as well.

Subparagraph (C) of paragraph 1 of Section I of this Article provides that Article XI of the Treaty is to be applied provisionally. Article XI provides that the States Parties shall transmit notifications and reports required by the Treaty in written form. Article XI also provides that the States Parties shall transmit such notifications and reports through diplomatic channels or, at their choice, through other official channels, such as the communications network of the Conference on Security and Cooperation in Europe. Article XI is provisionally applied in order to ensure that notifications and information exchanges required by the Treaty during the period of provisional application are accomplished in the manner specified in that Article.

Subparagraph (D) of paragraph 1 of Section I of this Article provides that Article XIII, Section I, paragraphs 1 and 2 of the Treaty are to be applied provisionally. Article XIII, Section I deals with Designation of Personnel. Article XIII, Section I, paragraph 1 provides that each State Party shall, at the same time that it deposits its instrument of ratification with either of the Depositaries, provide to all other States Parties, for their review, a list of designated personnel to carry out all duties relating to the conduct of observation flights for that State Party, including monitoring the processing of the sensor output. Paragraph 1 also provides that no such list of designated personnel shall include more than 400 individuals at any time.

Paragraph 1 further provides that the list shall contain the name, gender, date of birth, place of birth, passport number, and function for each individual included. Finally, paragraph 1 provides that each State Party shall have the right to amend its list of designated personnel until 30 days after entry into force of the Treaty and once ever six months thereafter.

Article XIII, Section I, paragraph 2 provides that in the event any individual included on the original or any amended list is unacceptable to a State Party reviewing the list, that State Party shall, no later than 30 days after receipt of each list notify the State Party providing that list that such individual shall not be accepted by the objecting State Party. Paragraph 2 also provides that individuals not declared unacceptable within that 30-day period shall be deemed accepted. Paragraph 2 further provides that the event a State Party subsequently determines that an individual is unacceptable, that State Party shall so notify the State Party that designated such individual. Finally, paragraph 2 provides that individuals who are declared unacceptable shall be removed from the list previously submitted to the objecting State Party.

Article XIII, paragraphs 1 and 2 are provisionally applied so that, as soon as a State Party has deposited its instrument of ratification to a Depositary, it will also provide the information specified in paragraphs 1 and 2 on designated personnel to all other States Parties.

Subparagraph (e) of paragraph 1 of Section I of this Article provides that Article XIV of the Treaty is to be provisionally applied. Article XIV deals with the Benelux. Article XIV, paragraph 1, provides that solely for the purposes of Articles II to IX and Article XI, and of Annexes A to I and Annex K to the Treaty, the Kingdom of Belgium, the Grand Duchy of Luxembourg, and the Kingdom of the Netherlands shall be deemed a single State Party, hereinafter referred to as the Benelux.

Article XIV, paragraph 2 provides that without prejudice to the provisions of Article XV, the above-mentioned States Parties may terminate this arrangement by notifying all other States Parties thereof. Paragraph 2 also provides that this arrangement shall be deemed terminated on the next December 31 following the 60-day period after such notification.

Article XIV is provisionally applied to recognize the construct of the Benelux for Open Skies purposes as soon as the Treaty was signed. It should be noted that the three States Parties mentioned in Article XTV, paragraph 1 are to be considered the Benelux solely for purposes of Articles II to IX and Article XI and Annexes A to I and Annex K. Of all these Articles and Annexes, the only two applied provisionally are Article VI, Section I, paragraph 4 and Article XI. Therefore, though the Benelux has been recognized as a single State Party for Open Skies purposes as of Treaty signature, that arrangement has effect only regarding Article VI, Section I, paragraph 4 and Article XI during the provisional application period.

Subparagraph (F) of paragraph 1 of Section I of this Article provides that Annex L, Section I of the Treaty is to be provisionally applied. Annex L, Section I deals with the general provisions of the Open Skies Consultative Commission and provides for the procedures and other administrative aspects of the Open Skies Consultative Commission. It also specifies the scope of operations of the Open Skies Consultative Commission.

Annex L, Section I has been provisionally applied to make clear the procedural and administrative details that the Open Skies Consultative Commission, which is established pursuant to Article X of the Treaty, is to adhere to while it meets provisionally pursuant to subparagraph 1(B) of this Article. Annex L, Section I has also been provisionally applied so the Open Skies Consultative Commission can be empowered to carry out the activities which it is obligated to carry out in accordance with that Annex during the period of provisional application. These activities include settling the distribution of costs arising under the Treaty, developing a document relating to notifications and reports required by the Treaty and developing rules of procedures and working methods for the Open Skies Consultative Commission, all pursuant to Annex L, Section I.

It must be noted that the list of provisions in Article XVIII, Section I, paragraph 1 is not a complete list of all the provisions of the Treaty that are to be applied provisionally.

During the negotiations, it was understood that other provisions of the Treaty that specify that a particular obligation is to be provisionally applied would remain so irrespective of whether they were included in the list of provisions to be applied provisionally in Article XVIII, Section I, paragraph 1. The other provisions in the Treaty to be applied provisionally but not included in the list are the following:

(A) Article IX, Section I, paragraph 1; and Section II, paragraph 2;

(B) Article IX, Section II, paragraph 2;

(C) Annex B, Section II, paragraphs 2(A)(1), 2(B) and (C). and paragraph 4;

(D) Annex D, Appendix 1, Section I, paragraphs 3, 4, and 5;Section III, paragraphs 2, 3, 4, and 5; and

(E) Annex F, Section I, paragraph 7.

In the above mentioned paragraphs, the Open Skies Consultative Commission has been obligated to accomplish particular tasks during the period of provisional application. For example, in Annex D, Appendix 1, Section I, paragraph 4, the Open Skies Consultative Commission provides that the calibration targets for establishing the ground resolution of sideways-looking synthetic aperture radar shall consist of arrays of trihedral corner reflectors whose configuration shall be in accordance with the methodologies determined within the Open Skies Consultative Commission during the period of provisional application.

Article XVIII, Section I, paragraph 2 provides that the period of provisional application shall be effective until March 23, 1993 and will automatically terminate on that date, which is 12 months from the date when the Treaty was opened for signature. The 12-month period places a time limit on the period of provisional application so that such period does not automatically continue indefinitely. However, the period of provisional application may terminate sooner if the Treaty enters into force before the 12 months expire. The period of provisional application can be extended only if all States Parties so decide. The States Parties, in order to extend the provisional application period, should do so before the 12-month period expires since there is no provision for the reinstatement of the provisional application period once it has terminated.

The paragraph also provides for another situation whereby the Treaty enters into force and the period of provisional application terminates. The States Parties may then decide to extend the period of provisional application regarding States Parties that have not ratified the Treaty, This is important because pursuant to Article XVII, paragraph 2, which provides that the Treaty shall enter into force 60 days after the deposit of 20 instruments of ratification, including those of the Depositaries, and of the nine States Parties whose individual allocation of passive quotas as set forth in Annex A is eight or more, the Treaty may enter into force without all States Parties have ratified the Treaty. Therefore, if the Treaty enters into force, the period of provisional application will terminate for all States Parties, However, the Treaty will enter into force only for those States Parties that have ratified the Treaty. In this respect, no Treaty provisions, provisionally or otherwise, will apply to those States Parties that have not yet ratified the Treaty. Therefore, paragraph 2 is provided as an alternative that once the Treaty enters into force for those States Parties that have ratified the Treaty (thereby resulting in the termination of the period of provisional application), the States Parties may, at that time, decide to allow the period of provisional application to continue for those States Parties which have not yet ratified the Treaty. Of course, at that time, the States Parties for which the Treaty has entered into force will be bound by all Treaty obligations.

Section II of Article XVIII addresses the phasing of the implementation of the Treaty. The negotiators believed that it would be preferable for certain provisions of the Treaty to be implemented at a date after entry into force rather than at entry into force. Many States Parties who will be designating observation aircraft acknowledged that they would need time before they possess the full aircraft and sensor capabilities specified in the Treaty. Therefore, the phasing of implementation was negotiated and inserted into the Treaty. It was envisaged that for an initial period States Parties would operate whatever systems they currently have available subject to Treaty limitations, and that States Parties would only be required to meet full standards at the end of a set period.

Paragraph 1 of Section II sets forth the applicable time frame in which the phasing of implementation is to begin and when it is to end. It provides that after entry into force, the Treaty shall be implemented in phases in accordance with the provisions set forth in this Section. It also provides that the provisions of paragraphs 2 to 6 of the Section shall apply during the period from entry into force of the Treaty until December 31 of the third year following the year during which entry into force takes place. Therefore, it is during this period that Article XVIII, Section II applies.

Paragraph 2 of Section II provides that notwithstanding the provisions of Article IV, paragraph I, no State Party shall during the period specified in paragraph 1 above use an infra-red line-scanning device if one is installed on an observation aircraft, unless otherwise agreed between the observing and observed Parties. It also provides that such sensors shall not be subject to certification in accordance with Annex D.. It further provides that if it is difficult to remove such sensor from the observation aircraft, then it shall have covers or other devices that inhibit its operation in accordance with the provisions of Article IV, paragraph 4 during the conduct of observation flights. These covers and devices are to prevent the collection of data during transit flights or flights to points of entry or from points of exit over the territory of the observed Party. It also provides that such covers or such other devices shall be removable or operable only from outside the observation aircraft.

Paragraph 2 of Section II makes clear that infra-red line-scanning devices are allowed on observation aircraft during the phasing of implementation period, though the use of such devices are prohibited. However, even the use of these devices is allowed if the States Parties involved agree to such use during the phasing period. In any event, these sensors are not to be subject to certification until the phasing period has expired. This makes clear that the use of these sensors is not to be based on their having met any standards agreed to by the States Parties.

Paragraph 3 of Section II provides that notwithstanding the provisions of Article IV, paragraph 9, no State Party shall, during the period specified in paragraph 1 of this Section, be obliged to provide an observation aircraft equipped with sensors from each sensor category, at the maximum capability and in the numbers specified in Article IV, paragraph 2, provided that the observation aircraft is equipped with the following:

(A) a single optical panoramic camera; or

(B) not less than a pair of optical framing cameras.

This paragraph makes clear that during the period of phasing of implementation, the minimum requirement for sensors on an observation aircraft is the cameras specified in subparagraphs (A) or (B) of paragraph 3. It is not necessary in the interim period that the aircraft be equipped with sensors from each of the categories of sensors at the maximum capability and in the numbers specified in Article IV, paragraph 2 of the Treaty. Nothing, however, would prevent a State Party from equipping its aircraft with all of the sensors provided for in Article IV, paragraph 2, if it desired, even during the initial period.

Paragraph 4 of Section II provides that notwithstanding the provisions of Annex B, Section II, paragraph 2, subparagraph (A) to the Treaty, data recording media shall be annotated with data in accordance with existing practice of States Parties during the period specified in paragraph 1 of this Section. This paragraph provides for a temporary means for annotation of data during the period of phasing of implementation of the Treaty. This provision was inserted because not all States Parties currently have the requisite automatic annotation equipment, and time will be necessary for its acquisition and installation.

Paragraph 5 of Section II provides that notwithstanding the provisions of Article VI, Section I, paragraph 1, no State Party during the period specified in paragraph 1 of this Section shall have the right to be provided with an aircraft capable of achieving any specified unrefuelled range. Article VI, Section I, paragraph 1 provides in pertinent part that in the event the observed Party provides the observation aircraft, the observing Party shall have the right to be provided with an aircraft capable of achieving a minimum unrefueled range, including the necessary fuel reserves, equivalent to one-half of the flight distance, as notified in accordance with paragraph 5, subparagraph (G) of that Section. Article XVIII, Section II, paragraph 5 makes clear that in those cases specified in the above mentioned Article VI provision, an aircraft capable of achieving a minimum unrefueled range is not required to be provided to the observing Party by the observed Party until the expiration of the period of phasing of implementation.

Paragraph 6 of Section II provides that during the period specified in paragraph 1 of this Section, the distribution of active quotas shall be established in accordance with the provisions of Annex A, Section II, paragraph 2 of the Treaty. Annex A, Section II, paragraph 2 provides that following the first distribution of active quotas and until the date of full implementation of the Treaty specified in Article XVIII, annual distributions shall be based on the 75 percent rule established in paragraph 1 of that Section in relation to the allocation of individual passive quotas. Therefore, the 75 percent rule will remain in effect until the expiration of the period of phasing of implementation.

Paragraph 7 of Section II provides that further phasing regarding the introduction of additional categories of sensors or improvements to the capabilities of existing categories of sensors shall be addressed by the Open Skies Consultative Commission in accordance with the provisions of Article IV, paragraph 3 concerning such introduction or improvement.

Article IV, paragraph 3 provides that the introduction of additional categories and improvements to the capabilities of existing categories of sensors provided for in Article IV shall be addressed by the Open Skies Consultative Commission pursuant to Article X of the Treaty. This makes clear that as new sensor categories and improvements to the capabilities of existing categories are added to those specified in Article IV, the phasing of implementation for these additions may be required. According to this paragraph, such phasing of implementation may be provided for as agreed to within the Open Skies Consultative Commission as that need arises.

Article XIX—Authentic texts

Article XIX consists of one paragraph. It deal with the authentic texts of the Treaty and the deposit of the Treaty texts with the Depositaries. .

Article XIX provides that the originals of the Treaty, of which the English, French, German, Italian, Russian, and Spanish texts are equally authentic, shall be deposited in the archives of the Depositaries (the Republic of Hungary and Canada). Article XIX also provides that duty certified copies of the Treaty shall be transmitted by the Depositaries to all the States Parties.

As a practical matter, the working language of the negotiation was English. Treaty texts in the other five language texts are deemed to be authentic, as stated in this Article, based on their having been duly translated and conformed to the English Treaty text at the conclusion of the negotiations.

Annex A—Quotas and maximum flight distances

Annex A, entitled "Quotas and Maximum Flight Distances," consists of three sections that provide data relating to the allocation of passive quotas, the annual distribution of active quotas, and the specification of maximum flight distances from Open Skies airfields for observation flights. Basic rights and obligations with respect to quotas are contained in Article III.

Section I, entitled "Allocation of Passive Quotas," consists of two paragraphs. Paragraph 1 provides the allocation of individual passive quotas for the State Parties that signed the Treaty in Helsinki on March 24, 1992, with the exception of Georgia, which signed the Treaty without directly participating in its negotiation in Vienna. A passive quota for Georgia will have to be agreed subsequently in the Open Skies Consultative Commission.

Paragraph 2 of Section I states that, in the event that an additional State ratifies or accedes to the Treaty, an allocation of a passive quota to such State shall be considered during the regular session of the Open Skies Consultative Commission following the date of deposit of its instrument of ratification or accession.

Section II, entitled "First Distribution of Active Quotas for Observation Flights," consists of four paragraphs: Paragraph 1 of Section II sets forth the first distribution of active quotas, which is based on the formula that for the initial period of implementation of the Treaty, each State Party shall be obligated to accept over its territory a number of observation flights no greater than 75 percent, rounded down to the nearest whole number, of its individual passive quota set forth in Section I. Thus, for example, the United States would only have to accept up to 31 flights annually in this initial period, being 75 percent of its full passive quota of 42. In any case, only 4 of those 31 were allocated—all to the Belarus/Russian group of States Parties. Conversely, the passive quotas of many other participants were fully allocated. This first distribution is valid from the date of entry into force of the Treaty until December 31 of the next year—the year after the year during which the Treaty enters into force—and shall be effective only for those States Parties having ratified the Treaty.

Paragraph 2 of Section II states that, until the date of fair implementation of the Treaty specified in Article XVIII, i.e., from January 1 of the fourth year following the year during which entry into force takes place, annual distributions of active quotas shall be based on the 75 percent rule established in paragraph 1 of this Section.

Paragraph 3 of Section II states that, from the date of full implementation of the Treaty, i.e., from January 1 of the fourth year following the year during which the Treaty enters into force, each State Party shall accept a number of observation flights up to the full amount of its individual passive quota, as set forth in Section I of this Annex. Such an increase will be based, whenever possible or whenever requested, and unless otherwise agreed, on a proportionate increase of the active quotas distributed in the first distribution.

Paragraph 4 of Section II states that, for additional States that ratify or accede to the Treaty, the distribution of active quotas to such State shall be considered during the regular session of the Open Skies Consultative Commission following the date of the deposit of its instrument of ratification or accession. The ratifying or acceding State has the right to request flights over the territories of States Parties within the passive quota allocated to that State and to the States requested for observation flights, unless other- wise agreed by the Parties involved. Further, all States Parties have the right to request observation flights over the territory of the State that has ratified or acceded to the Treaty within their own active quotas and within the passive quota allocated to that State.

Section III, entitled "Maximum Flight Distances of Observation Flights," sets forth the maximum flight distances of observation flights over the territories of observed Parties commencing from each Open Skies airfield specified by the States Parties pursuant to Annex E. The approximate observation flight distance set forth in the notification provided by the observing Party in accordance with paragraph 5 of Section I of Article VI, and the mission plan provided in accordance with paragraph 1 of Section II of that Article, may not exceed the relevant maximum flight distance contained in this Section-

Annex B—Information on sensors

Annex B, entitled "Information on Sensors," consists of two Sections and one Appendix.

Section I of Annex B, entitled "Technical Information, specifies the technical information that, pursuant to paragraph 10 of Article IV, is required to be conveyed to all States Parties concerning each sensor installed on the aircraft designated by that State Party pursuant to Article V as an observation aircraft. Such information is provided according to the category of sensor. It should be noted that this is a requirement for the provision of information on sensors, and does not represent or establish limitations or requirements for sensors.

Paragraph 2 stipulates the technical information required for optical panoramic and framing cameras. Paragraph 3 stipulates the technical information required for video cameras. Paragraph 4 stipulates the technical information required for infra-red line-scanning devices. Paragraph 5 stipulates the technical information required for sideways-looking synthetic aperture radars. Paragraph 6 specifies additional technical information required for sensors that record data on photographic film. Paragraph 7 specifies additional technical information required for sensors that record data on other recording media.

Section II of Annex B, entitled "Annotation of Data," consists of four paragraphs.

Paragraph 1 of Section II identifies the information required to be annotated on data collected by sensors during an observation period. Such information must be placed on the leader of each roll of the original film negative or at the beginning of each other recording medium.

Paragraph 2 of Section II identifies the information that must be recorded manually or electronically from the navigation and avionics system of the observation aircraft and annotated on data collected by sensors during an observation period. For all categories of sensors, the intervals at which such information must be provided will be decided by the Open Skies Consultative Commission during the period of provisional application of the Treaty. Paragraph 3 of Section II requires that, for copies of single frames or strips of imagery produced from the original film negative or other recorded media, the information set forth in paragraphs 1 and 2 of this Section be annotated on each positive print.

Paragraph 4 of Section II establishes the right of States Parties conducting observation flights to annotate date collected during such flights using either alphanumeric values or codes agreed by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Appendix 1 to Annex B, entitled "Annotation of Data Collected During an Observation Flight," contains 16 paragraphs that provide detailed conventions for annotating data. This Appendix contains the alphanumeric characters to represent the reference number of the observation flight (paragraph 1), sensor description (paragraph 2), and sensor configuration (paragraph 3). It also provides rules for specifying the focal length of a lens, the date and time, average height above ground level, latitude and longitude, true heading, roll angle, pitch angle, drift angle, ground speed, swath width, and look down angle. Finally, this Appendix specifies the procedures for numbering film magazines and frames on the original film negative.

Annex C—Information on observation aircraft

Annex C, entitled "Information on Observation Aircraft," consists of five paragraphs that describe the information that must be provided to all States Parties when a State Party designates aircraft as observation aircraft pursuant to paragraph 2 of Article V. It should be noted that this is a requirement for the provision of information on aircraft and does not represent or establish limitations or requirements for aircraft.

Paragraph 1, entitled "Identification", requires information on the type and model of the aircraft, as well as the number, category, type and configuration of each sensor installed on the observation aircraft. The information on the sensors must be provided as set forth in Annex B.

Paragraph 2, entitled "Mission Planning," requires information on the height above ground level at which each sensor achieves the performance limits set forth in paragraph 2 of Article IV, for each type and configuration of sensor installed on the observation aircraft for which ground resolution is dependent upon that height; for other types and configurations of sensors, the altitude for maximum range must be provided. Additional information that must be provided includes optimum cruising speed at each altitude specified in accordance with this paragraph and the fuel consumption at optimum cruising speed at such altitudes.

Paragraph 3, entitled "Navigation, Communications, and Landing Aids," requires information on each type of navigation equipment installed on the observation aircraft and the positional-accuracy of that equipment, and information on radio communications, approach and landing equipment installed on the observation aircraft. Such information shall be provided in accordance with standard practice established by the International Civil Aviation Organization.

Paragraph 4, entitled "Ground Handling," requires information needed to establish the characteristics of airfields that would be capable of handling observation aircraft. This information consists of the physical dimensions of the aircraft, airfield runway length and pavement strength required, types of fuels used and other servicing requirements.

Paragraph 5, entitled "Accommodation Facilities," requires information on the total number of personnel who could be seated on board, including the flight crew, and the number of sleeping berths.

Annex D—Certification of observation aircraft and sensors

Annex D, entitled "Certification of Observation Aircraft and Sensors," consists of four Sections and one Appendix that together provide the procedures for conducting the certification of an aircraft designated as an observation aircraft by a State Party pursuant to Article V and the sensors installed on such an aircraft.

Section I, entitled "General Provisions," consists of nine paragraphs.

Paragraph 1 of Section I establishes the right of each State Party to send personnel to participate in the certification process of an observation aircraft of each type and model designated by another State Party and the associated set of sensors installed on such an aircraft. The State Party designating the aircraft is responsible for conducting the certification and is obliged to provide a notification concerning the certification pursuant to paragraph 3 of this Section. Pursuant to paragraph 4 of Article V, only one exemplar of a particular type and model of aircraft with an identical set of sensors must be certified. The aircraft and its sensors are examined both on the ground, as set forth in Section II of this Annex, and in-flight, as set forth in Section III of this Annex.

Paragraph 2 of Section I states the purpose of the certification, which is to establish that: (A) the type and model of the aircraft corresponds to that designated by the State Party conducting the certification; (B) the categories of the sensors installed on the aircraft correspond to the categories in paragraph 1 of Article IV and the sensors meet the performance limits specified in paragraph 2 of that Article; (C) the technical information on the sensors has been provided in accordance with Annex B; and (D) the covers for sensor apertures and other inhibiting devices are in their proper position. The certification establishes the minimum height above ground level from which a sensor may be operated to achieve the maximum permitted ground resolution of the sensor,

Paragraph 3 of Section I requires each State Party conducting a certification to provide sixty-day advance notification of the period during which the certification will take place. The certification must take place within a seven-day period. Paragraph 3 also provides the content of the notification, which includes basic information necessary for prospective participants at the certification, including the location of the certification and the aircraft and sensors to be certified.

Paragraph 4 of Section I requires that each State Party intending to participate in the certification notify all other State Parties of its intention, no later than 10 days after receiving the notification from the State Party conducting the certification described supra in paragraph 3.

Paragraph 5 of Section I requires that each State Party intending to participate in the certification notify the State Party conducting the certification no less than 30 days in advance of the beginning date of the certification, as notified in accordance with paragraph 3 of this Section. The following information will be provided in that notification: (A) the names of all the individuals who will be participating in the certification, and if a non-commercial transport aircraft is to be used to travel to the point of entry, the list of names of the crew members; (B) the date and estimated time of arrival at the point of entry; and (C) the mode of transport to be used to arrive at the point of entry. All individuals taking part in the certification must be on the list of individuals designated pursuant to Article XIII, thus, ensuring that the State Party condueling the certification has had a right to review and approve or reject each individual proposed.

Paragraph 6 of Section I requires that the State Party conducting the certification provide the State Parties that have notified their intention to participate in the certification, no less than 14 days in advance of the beginning of the certification, the following information for each sensor on the aircraft and for the associated equipment used to annotate data collected by the sensors: (A) a description of each constituent part of the sensor, its purpose, and any connections to associated data annotation equipment; (B) photographs taken of each sensor separate from the observation aircraft; and (C) instructions on the in-flight operation of each sensor.

Paragraph 7 of Section I requires the State Party conducting the certification to conduct the in-flight examination on its own if no State Party notifies its intent to take part in the certification. At the conclusion of that examination, a certification report would be completed and provided to other States Parties in accordance with Section IV of this Annex. In such a circumstance, no State Party would have the right to contest the certification.

Paragraph 8 of Section I applies the privileges and immunities accorded to the personnel of the observing Party to the individuals taking part in the certification. Such privileges and immunities apply during the entire period those individuals are present on the territory of the State Party conducting the certification.

Paragraph 9 of Section I requires the personnel of the States Parties taking part in the certification to depart the territory on which the certification was conducted promptly after signing the certification report.

Section II, entitled "Ground Examination," consists of fourteen paragraphs that provide the procedures for the ground examination part of the certification process.

Paragraph 1 of Section II permits, with the approval of the State Party conducting the certification, more than one State Party to conduct ground examinations simultaneously. This paragraph also establishes the right of States Parties to jointly conduct a ground examination. The State Party conducting the certification, however, has the right to determine the number of personnel of the other States Parties engaged at any one time in the ground examination.

Paragraph 2 of Section II sets forth the length of the ground examination as three eight-hour periods for each observation aircraft and its sensors.

Paragraph 3 of Section II requires the State Party conducting the certification to provide the participating States Parties with additional information on the sensors, beyond that required pursuant to paragraph 6 of Section I of this Annex, including flight test data.

Paragraph 4 of Section II requires the State Party conducting the certification to provide a briefing to the personnel of the participating States Parties on (A) how the ground examination will be conducted; (B) the layout of the observation aircraft and the position of the sensors, associated equipment, sensor covers and other inhibiting devices on that aircraft; (C) safety precautions that must be observed during the ground examination; and (D) the inventory procedures that the escorts will use with respect to items brought on board the aircraft during the examinations.

Paragraph 5 of Section II requires that each participating State Party deliver a list of the equipment to be used during the examinations; such list must be provided prior to commencement of the ground examination. Such equipment may include video cameras, hand-held audio recorders, hand-held electronic computers, and other items approved by the State Party conducting the certification.

Paragraph 6 of Section II requires that all the States Parties present for the certification conduct an inventory of the equipment to be used during the examinations and to review the inventory procedures that will be used by the escorts of the State Party conducting the certification to confirm that each such item has been removed from the aircraft at the conclusion of the examinations.

Paragraph 7 of Section II establishes the right of the personnel of each participating State Party to conduct the following activities during the ground examination: (A) confirm that the number and configuration of each sensor correspond to the information provided in accordance with other provisions of the Treaty; (B) familiarize themselves with the installation of each sensor, including the constituent parts and connections to each other and any associated data annotation equipment; (C) obtain a demonstration of the control and operation of each sensor; and (D) familiarize themselves with the flight test data provided pursuant to paragraph 3 of this Section.

Paragraph 8 of Section II requires the State Party conducting the certification to photograph any sensor on the observation aircraft, the associated equipment of the sensor apertures with their covers or other inhibiting devices, at the request of any participating State Party.

Paragraph 9 of Section II establishes the right of the State Party conducting the certification to designate escorts to accompany the personnel of the participating States Parties to confirm that the provisions of this Section are being complied with. Personnel of the State Party conducting the certification, however, may not interfere with the activities of the participating States Parties, unless such activities conflict with the safety precautions that were specified in the briefing provided prior to the commencement of the ground examination.

Paragraph 10 of Section II requires the State Party conducting the certification to provide the participating States Parties access to the entire aircraft, its sensors and associated equipment; in addition, sufficient power to operate the sensors and associated equipment must be provided, so that the operation of the sensors and equipment can be examined. Only the State Party conducting the certification may open compartments and remove panels or barriers in the aircraft. Such activities must be done to the extent necessary to permit the participating States Parties to examine the sensors and associated equipment. Any question that may arise as to whether these activities were done to the necessary extent will be resolved between the participating States Parties and the State Party conducting the certification or, if resolution cannot be reached, in the Open Skies Consultative Commission.

Paragraph 11 of Section II is intended to protect the aircraft and sensors from adverse effects caused by the examination by requiring that the examination be conducted in a manner that does not degrade, damage or prevent subsequent operation of the observation aircraft or its sensors; (B) alter the electrical or mechanical structure of the aircraft or its sensors; or (C) impair the airworthiness of the aircraft.

Paragraph 12 of Section II establishes the right of the participating States Parties to take measurements and make notes, sketches, similar records and recordings relating to the aircraft, sensors and associated equipment. Only the equipment listed in paragraph 5 of this Section may be used for this purpose. Such materials may be retained by the Parties compiling them and are not subject to any review or examination by the State Party conducting the certification.

Paragraph 13 of Section II requires the State Party conducting the certification to make every effort to answer questions raised by the participating States Parties that pertain to the ground examination.

Paragraph 14 of Section II requires the participating States Parties to leave the aircraft upon completion of the ground examination. The State Party conducting the certification has the right to use its own inventory procedures, as set forth in paragraph 6 of this Section, to confirm that all the equipment used during the ground examination has been removed from the aircraft.

Section III, entitled "In-Flight Examination," consists of eight paragraphs.

Paragraph 1 of Section III requires the State Party conducting the certification to complete one in-flight examination of its sensors. Such examination must be sufficient to (A) permit observation of the operation of all the sensors; (B) establish the minimum height above ground level from which sensors installed on the aircraft may be operated, as set forth in paragraph 2 of Article IV— if the ground resolution of the sensor depends upon height above ground level, e.g., optical cameras; and (C) establish the ground resolution of sensors installed on the aircraft for which the ground resolution of the sensor does not depend upon height above ground level, e.g.. sideways-looking synthetic aperture radar. The methodologies for determining ground resolution and minimum height above ground level are set forth in Appendix 1 to this Annex.

Paragraph 2 of Section III requires the State Party conducting the certification to brief the participating State Parties on how it plans to conduct the in-flight examination. Such briefing must be held prior to the beginning of the in-flight examination and must include the following: (A) a diagram of the calibration targets that will be used to determine the minimum height above ground level and ground resolution, as specified in Appendix 1; (B) data concerning each pass over the calibration target; and (C) the safety precautions that must be observed during the in-flight examination.

Paragraph 3 of Section III establishes the right of the participating State Parties to visit the location of the calibration targets. Such right exists both prior to and during the conduct of the inflight examination. In addition, the State Party conducting the certification must provide the appropriate equipment to permit the participating State Parties to confirm that the calibration targets meet the specifications set forth in Appendix 1.

Paragraph 4 of Section III requires that the in-flight examination be conducted during clear atmospheric daytime conditions, unless otherwise agreed, and that the examination take place over calibration targets appropriate to each category of sensors, as set forth in Appendix 1.

Paragraph 5 of Section III requires the State Party conducting the certification to provide data on meteorological conditions at the location of the calibration targets during the examination that permit the appropriate calculations to be made in accordance with Appendix 1.

Paragraph 6 of Section III establishes the right of each participating State Party to designate individuals to be on board the aircraft during the in-flight examination. In the event the number of such individuals exceeds the passenger capacity of the aircraft, the participating States Parties must agree on which of the individuals will be on board during the examination. If agreement cannot be reached, the matter could be raised within the Open Skies Consultative Commission. There is no requirement that the State Party conducting the certification conduct more than one flight as part of the in-flight examination.

Paragraph 7 of Section III establishes the right of the personnel of the participating States Parties on board the aircraft during the in-flight examination to observe the operation of the sensors by personnel from the State Party conducting the certification.

Paragraph 8 of Section III establishes the right of the participating State Parties to monitor the unsealing of the film cassette and the storage, processing and handling of the original film negative exposed during the in-flight examination, in accordance with the procedures set forth in Annex K.

Section IV, entitled "Certification Report," consists of five paragraphs.

Paragraph 1 of Section IV requires that all data collected by the sensors and all data collected from the calibration targets be examined jointly by the State Party conducting the certification and all the participating States Parties. Such examination will take place upon completion of the ground and in-flight examinations. After examining the data, those Parties will prepare a certification report, which will establish: (A) that the aircraft is of a type and model designated pursuant to Article V; (B) that the sensors installed on the aircraft correspond to the categories of sensors set forth in paragraph 1 of Article IV, and that they satisfy the performance limits set forth in paragraph 2 of Article IV; (C) that the technical information on sensors has been provided, as required by Annex B;(D) the minimum height above ground level that a sensor may be operated—if the ground resolution of the sensor is dependent upon height above ground level; (E) the ground resolution of the sensor if the ground resolution of the sensor is not dependent upon height above ground level; and (F) that the covers for sensor apertures and other inhibiting devices are in accordance with the requirements set forth in paragraph 4 of Article IV, i.e., that such covers or devices are present, that they prevent collection of data, and that they are removable or operable only from outside the observation aircraft.

Paragraph 2 of Section IV requires that a copy of the information provided pursuant to this Annex for each sensor be attached to the certification report. Such information includes, inter alia, a description of each constituent part of the sensor, instructions on the inflight operation of the sensor, flight test data, and photographs.

Paragraph 3 of Section IV requires that copies of the report be provided to all other States Parties. Such recipients, however, who did not take part in the certification, do not have the right to reject the conclusions contained in the certification report.

Paragraph 4 of Section TV states that the aircraft and its sensors are deemed to be certified unless the participating States Parties are unable to reach agreement with the Party conducting the certification on the contents of the report.

Paragraph 5 of Section IV states that if there is no agreement on the contents of the certification report, the observation aircraft may not be used for observation flights until the issue is resolved.

Appendix 1 to Annex D, entitled "Methodologies for the Verification of the Performance of Sensors Installed on an Observation Aircraft," consists of three sections that provide procedures for the determination of the ground resolution and minimum height above ground level for sensors during the in-flight examination conducted pursuant to Section III of Annex D. Such determination is to be made on the basis of data collected over calibration targets and is to be calculated in accordance with methodologies that are to be agreed within the Open Skies Consultative Commission.

Section I of Appendix 1, entitled "Specifications for Calibration Targets," consists of five paragraphs, which describe the calibration targets to be used during the in-flight examination.

Paragraph 1 of Section I requires that calibration targets be provided by the State Party conducting the certification. The purpose of such targets is to establish the ground resolution of sensors. The calibration targets must be of a type appropriate to each sensor category, and shall be designed in accordance with paragraphs 2 through 5 of this Section.

Paragraph 2 of Section I described calibration targets for establishing the ground resolution of optical cameras. Paragraph 3 of Section I states that calibration targets for establishing the ground resolution of infra-red line-scanning devices are to be determined within the Open Skies Consultative Commission during the period of provisional application of the Treaty. Paragraph 4 of Section I describes the type of targets to be used to establish the ground resolution of sideways looking synthetic aperture radar, but leaves the configuration to be subsequently determined, based on the methodologies agreed within the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Paragraph 5 of Section I requires that each State Party conducting a certification provide the other States Parties with a diagram of the calibration targets that it intends to use during the in-flight examination. The diagram must be annotated with specified information, some of which is referred to in this paragraph and some of which are to be decided within the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Section II of Appendix 1, entitled "Conduct of In-Flight Examination," consists of three paragraphs that describe the line of flight of the observation aircraft during the flight over the calibration targets for each type of sensor. Paragraph 1 describes the line of flight for optical cameras, paragraph 2 describes the line of flight for infra-red line-scanning devices, and paragraph 3 describes the line of flight for sideways-looking synthetic aperture radar.

Section III of Appendix 1, entitled "Analysis of Data Collected During the In-Flight Examination," consists of five paragraphs that describe the process of analyzing the data collected over the calibration targets, the results of which are provided in the certification report in accordance with Section IV of Annex D.

Paragraph 1 of Section III requires the State Party conducting the certification and the participating States Parties to jointly analyze the data collected during the in-flight examination.

Paragraph 2 of Section III states that the methodology for calculating the minimum height above ground level at which each optical camera may be operated must be agreed by the Open Skies Consultative Commission during the period of provisional application of the Treaty but prior to June 30, 1992. The analysis of that agreement is provided infra. The minimum height above ground level is the height at which the camera would obtain imagery equal to but not better than the agreed standard ground resolution of 30 centimeters. Specification of the contrast ratio, i.e., the numerical representation of the difference between the black and white lines in the test target, is necessary because the results achieved in terms of ground resolution are directly affected by the degree of contrast in the target. The ground resolution of the optical cameras will be determined from a visual analysis of the image of the target on the film negative, and the value of the ground resolution is equal to the width of the smallest bar on the calibration target that is distinguishable as a separate bar.

Paragraph 3 of Section III states that the methodology for calculating the minimum height above ground level at which each video camera may be operated will be determined by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Paragraph 4 of Section III states that the methodology for calculating the minimum height above ground level at which an infrared line-scanning device may be operated, including the value of the minimum resolvable temperature difference to be used in this calculation, shall be agreed by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Paragraph 5 of Section III states that the methodology for calculating the ground resolution of a sideways-looking synthetic aperture radar, including the determination of the relationship between the "impulse response" method, which is used by, inter alia, the United States and the United Kingdom, and the "object separation" method, which is used by Russia, will be agreed by the Open Skies Consultative Commission during the period of provisional application of the Treaty.

Annex E—Procedures for arrivals and departures

Annex E, entitled "Procedures for Arrivals and Departures," consists of ten paragraphs that contain provisions on establishing points of entry, points of exit, open Skies airfields, entry fixes, exit fixes and calibration targets, as well as procedures for activities that take place upon arrival and upon departure. This annex also contains an appendix that provides data for each of the States Parties with respect to those sites. Not all information was available from all Parties at the time of signature of the Treaty. Remaining information will be submitted by the Parties through the Open Skies Consultative Commission.

Paragraph 1 requires each State Party to designate at least one point of entry, one point of exit, and one Open Sides airfield on its territory. Initial data is set forth in Appendix 1 to this Annex. Any or all of the points of entry, and any or all of the points of exit, may also be designated as Open Skies airfields, which, according to paragraph 27 of Article II, is the point where an observation flight may commence or terminate. If, however, the Open Skies airfield is not the same as the point of entry, the Open Skies airfield must be within five hours of the point of entry, using the observing Party's observation aircraft or the observed party’s transportation, unless the Parties agree otherwise. Paragraph 1 also establishes the right of the observing Party to a rest period upon arrival at the point of entry or Open Skies airfield, subject to the time restrictions contained in Article VI, i.e., paragraph 9 of Section I, which sets a 96-hour period for completion of the observation flight, unless otherwise agreed.

Paragraph 2 establishes the right of each State Party to designate entry fixes and exit fixes, which correspond to the ICAO term "transfer of control point," i.e., a defined point located along the flight path of an aircraft, at which the responsibility for providing air traffic control service to the aircraft is transferred from one control unit or control position to the next (ICAO Document 4444RAC/501/12, 1-14). With respect to the term "entry fix," it is the point at which the aircraft enters the air traffic control area of the observed Party; for the term "exit fix," it is the point at which the aircraft exits the air traffic control area of the observed Party .

Paragraph 2 of Annex E states that, if a party decides to designate such fixes, such fixes must facilitate flight from the territory of the observing Party to the point of entry of the observed Party. The intention was to preclude Parties designating entry fixes that would require unusually circuitous or difficult routing, which would frustrate the objectives of the Open Skies regime. The flights between the entry fix and the point of entry, and between the point of exit and the exit fix, must be conducted in accordance with published ICAO standards and recommended practices and national regulations; in other words, there are no special procedures required by the Open Skies treaty. If portions of such flights lie in international airspace, the flight through international airspace must be conducted in accordance with published international regulations.

Paragraph 3 states that the initial information on points of entry, points of exit, Open Skies airfields, entry fixes and exit fixes, refueling airfields, and calibration targets is provided in Appendix 1. Paragraph 4 establishes the right of a State Party to introduce changes to Appendix 1 by notifying all other States Parties of such changes, in writing, no less than 90 days before such changes become effective. Since Section II of Appendix 1, which contains the initial data, did not include data for all categories of data as of the date of signature of the Treaty, such changes are likely to be numerous at the beginning of Treaty implementation, after entry into force of the Treaty.

Paragraph 5 provides the rules that ensure that, despite the geographic peculiarities of the territory of a given State Party, particularly as pertains to island territory, the entire territory of that State Party will be effectively observed. The rule that ensures effective observation of the mainland territory of a State Party, which is contained in subparagraph (A), is that Open Skies airfields must be designated so that no point on the territory of that State Party is farther from at least one of its Open Skies airfields than 35 percent of the maximum flight distance established for that airfield in Section III of Annex A. The figure of 35 percent was intended to allow for a flight out to that point (35 percent), a flight back from that point to the same airfield (35 percent), and sufficient maneuvering distance (30 percent) for observation activities.

There are three rules set forth in subparagraph (B) that ensure effective observation of portions of the territory of a State Party that are separated from the mainland territory, e.g., islands. One of these rules must be chosen by the State Party to cover its particular situation. The States Parties primarily affected by this provision are the United States, Denmark, France, Norway, and the United Kingdom.

(1) The first rule, set forth in subparagraph (BXD, is that the State Party may decide to designate an Open skies airfield that can reach the island pursuant to the 35 percent principle elaborated in subparagraph (A) of this paragraph.

(2) The second rule, set forth in subparagraph (B)(2), is that a State Party may provide special procedures, including the use of refueling airfields, but the choice of this rule is permitted only in the following cases: (A) if the portion or portions of the territory are separated from the mainland territory by more than 600 kilometers; (B) if the observing Party and the State party choosing this option agree that this rule may be applied for the former's observation flights over the latter's territory; or (C) if this situation is covered in Section III of Annex A.

(3) The third rule, set forth in subparagraph (B)(3), is that the State Party may specify a separate maximum flight distance in Section III of Annex A to cover this portion or portions of its territory, but this rule is permitted only if the portion or portions of the territory are separated from the mainland territory by less than 600 kilometers and that portion or portions of the territory are not covered by the 35 percent rule established for Open Skies airfields, as set forth in subparagraph (A) of this paragraph.

Paragraph 6 requires that both the observed and observing Parties inspect the covers for sensor apertures and other devices that inhibit the operation of sensors immediately upon the arrival of the observation aircraft at the point of entry and immediately prior to the departure of the observation aircraft from the point of exit. Such covers and other inhibiting devices are installed in accordance with paragraph 4 of Article IV. If the point of entry is different from the Open Skies airfield from which the observation flight commences, both Parties must inspect the covers and other inhibiting devices immediately prior to the departure of the observation aircraft from the point of entry en route to the Open Skies airfield. If the point of exit is different from the Open Skies airfield at which the flight terminates, both Parties must inspect the covers and other inhibiting devices immediately prior to departure of the aircraft from that airfield en route to the point of exit.

Paragraph 7 establishes the right of a State Party to conduct an examination and inventory of items of equipment that the other State Party intends to use for the purpose of conducting the preflight inspection of sensors and aircraft, as provided for in Annex F, as well as the items that the flight representatives intend to bring on board the observation aircraft. With respect to aircraft provided by the observing Party, the observing Party conducts the examination and inventory of equipment; with respect to aircraft provided by the observed Party, the observed Party conducts that examination and inventory. This examination and inventory must begin no later than one hour after arrival of the items at the point of entry or the Open Skies airfield, at the choice of the State Party conducting the examination and inventory. The examination and inventory must be completed within one hour and must be carried out in the presence of one or more individuals designated by the other Party.

Paragraph 8 provides the procedures for items that, pursuant to paragraph 7, were examined and inventoried but were found not to conform to the list of authorized equipment contained in paragraph 5 of Section II of Annex D or, for items that the flight representatives intend to bring on board the observation aircraft, the items described in paragraph 4 of Section I of Annex G. The examining Party has the right to deny permission for the use of all items that do not conform to those on the lists and, unless the Parties otherwise agree, such items must be placed in a sealed container for safekeeping and subsequently removed from the territory of the observed Party at the earliest opportunity, but not later than the departure of the observing Party from the territory,

Paragraph 9 provides procedures to be used when the observing Party travels to the point of entry using a transport aircraft registered with the observing Party or with another State Party. This situation would normally occur when the observation aircraft is to be provided by the observed Party. In such a situation, the transport aircraft may (1) depart from the territory of the observed Party; (2) if the point of entry and the point of exit are the same, remain at the point of entry until the observing Party departs from the territory of the observed Party; or (3) if the point of entry is not the same as the point of exit, fly to the point of exit in sufficient time to permit the crew to rest prior to departure of all the personnel of the observing Party from the territory of the observed Party. As noted in paragraph 10 infra, there is a fourth option for the transport aircraft: for the observing Party to use the transport aircraft for transporting its personnel from the point of entry to the Open Skies airfield. After carrying out the task, one of the three options in paragraph 9 would apply for the further disposition of that aircraft.

Paragraph 10 provides procedures to be used when the observation aircraft is provided by the observed Party and the observing Party does not use its own transport aircraft for transporting its personnel from the point of entry to the Open Skies airfield. In such a situation, the observed Party must ensure that the personnel of the observing Party are transported from the point of entry to the Open Skies airfield and from the Open Skies airfield to the point of exit. As provided in paragraph 1 of this Annex, the Open Skies airfield cannot be farther than five hours away from the point of entry.

Appendix 1 of Annex E consists of two sections, the first entitled "Designation of Sites", the second entitled "Points of Entry, Points of Exit, Open Skies Airfields, Entry Fixes, Exit Fixes, Refueling Airfields, and Calibration Targets."

Section I of Appendix 1 states that the sites to be used as points of entry, points of exit, Open Skies airfields, refueling airfields, calibration targets, entry fixes and exit fixes are initially as specified in Section II of the Appendix. As provided for in paragraph 4 of Annex E, changes can be made to these lists upon 90-day advance notification. In addition to the name of each such site, the designation in Section II includes its location, in terms of latitude and longitude to the nearest second, and whether or not the preflight inspection of the aircraft or sensors can be conducted at that site pursuant to Annex F.

Section II of Appendix 1 sets forth the data for each of the States Parties concerning each of the designated sites. The States Parties appear in order according to the French version of their names, the same order in which they appear in on the signature page. For many of the States Parties, no entry fixes or exit fixes are provided in accordance with paragraph 2 of Annex E, the designation of such fixes is not required. In addition, a number of the State Parties have not yet provided the location of calibration targets, in part due to the fact that some of the specifications of calibration targets are still subject to determination within the Open Skies Consultative Commission. There is no data on Georgia in Section II, since that State Party did not participate in the negotiations in Vienna.

Annex F—Pre-flight inspections and demonstration flights

Annex F, entitled "Pre-Flight Inspections and Demonstration Flights," consists of three sections that provide procedures for the pre-flight inspection of an observation aircraft provided by the observing Party and its sensors, for the pre-flight inspection of the sensors installed on an observation aircraft provided by the observed Party, and for demonstration flights.

Section I, entitled "Pre-Flight Inspection of Observation Aircraft and Sensors of the Observing Party," consists of 11 paragraphs that describe the pre-flight inspection of an observation aircraft provided by the observing Party and its sensors and provide specific procedures for the conduct of such an inspection.

Paragraph 1 of Section I establishes the purposes of the preflight inspection of the aircraft and its sensors, which is to confirm that the aircraft, its sensors and the associated equipment correspond to those certified in accordance with the provisions of Annex D. To fulfill this purpose, the observed Party has the right to conduct a pre-flight inspection to confirm that: (A) the aircraft, its sensor and associated equipment, including lens and photographic film, correspond to those certified in accordance with Annex D; and (B) there are no items of equipment on board the aircraft other than those permitted by paragraphs 5, 6, and 7 of Article IV, which permit equipment capable of annotating data collected by sensors and equipment capable of displaying data collected by sensors in real-time, as well as other equipment required for the operating of the agreed sensors or of the observation aircraft.

Paragraph 2 of Section I requires the observed Party, upon arrival of the observation aircraft at the point of entry to provide the observing Party: (A) a list of the inspectors, not to exceed ten; (B) a list of the items of equipment that the inspectors intend to use during the inspection; and (C) the plan for the inspection.

Paragraph 3 of Section I requires a designated individual from the observing Party, prior to the commencement of the pre-flight inspection, to: (A) brief the observed Party on the inventory procedures it intends to use to confirm that all items brought on board by the inspectors have been removed at the end of the inspection;

(B) conduct an examination and inventory of each such item, together with the inspectors; and (C) brief the inspectors on all safety precautions that they must observe during the inspection.

Paragraph 4 of Section I permits the inspection to begin only upon completion of the formal arrival procedures and limits the inspection to eight hours.

Paragraph 5 of Section I establishes the right of the observing Party to provide its own escorts to accompany the inspectors throughout the inspection to confirm that it is carried out in accordance with the Treaty. In this regard, the observing Party must facilitate the inspection in accordance with procedures established for the certification—contained in paragraphs 7 and 8 of Section II of Annex D—which include permitting the inspectors to confirm the number and configuration of each sensor, familiarize themselves with the installation of each sensor, obtain a demonstration of the control and operation of each sensor, familiarize themselves with flight test data, and have pictures taken of sensors, associated equipment, apertures or inhibiting devices.

Paragraph 6 of Section I establishes the inspectors right of access to the observation aircraft, its sensors and associated equipment in the same manner established for the certification, which provides for access to the entire aircraft and opening compartments or removing panels or barriers to the extent necessary to permit examination of any sensor and associated equipment. In so doing, however, the inspectors must comply with the same constraints imposed for the certification, as provided for in paragraph 11 of Section II of Annex D, such as not conducting the inspection in a manner that degrades, damages, or prevents subsequent operation of the aircraft or its sensors, alters the electrical or mechanical structure of the aircraft or sensors, or impair the airworthiness of the observation aircraft. During the examination, the inspectors have the right to take measurements, make notes, sketches, similar records and recordings, which they may retain, as provided for in paragraph 12 of Section II of Annex D.

Paragraph 7 of Section I permits the inspectors to take on board and use the following non-destructive testing equipment: video probe, x-ray and backscatter x-ray imaging equipment, ultrasonic imaging equipment, logic/data analyzer, passive infra-red sensors, and 35 millimeter cameras. This paragraph also notes the additional non-destructive testing equipment may be agreed upon by the Open Skies Consultative Commission prior to June 30, 1992, and that such equipment may be used by the inspectors to establish that no items of equipment are on board the observation aircraft other then those permitted by Article IV, as provided for in subparagraph 1(B) of this Section. One additional piece of equipment, a volt-ohm meter, was agreed to in the Open Skies Consultative Commission on June 29, 1992.

Paragraph 8 of Section I requires the inspectors to leave the observation aircraft after the pre-flight inspection has been completed. The observing Party may then use its own inventory procedures to confirm that all equipment used during the inspection has been removed from the aircraft; pursuant to subparagraph 3(A) of this Section, these procedures must have been explained to the observed Party prior to the beginning of the inspection. If, in the course of the conduct of the inventory procedures, the observed Party is unable to demonstrate that all inspection equipment has been removed to the satisfaction of the observing Party, i.e., that all the inspection equipment brought on board the aircraft was removed from the aircraft, the observing Party has the right to proceed with the observation flight or to cancel it. In the latter case, the observing Party may depart the territory of the observed Party when the former is satisfied that it is safe to do so. In accordance with paragraph 6 of Section I of Article VIII, the facts for the cancellation must be stated in the mission plan, and within seven days all States Parties must be provided, through diplomatic channels or other official channels, a written explanation for this prohibition in the mission report. If the observing Party decides to cancel the flight, the observation flight will not count toward the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 9 of Section I requires the inspectors to immediately inform the observing Party if they establish that the aircraft, its sensors or associated equipment do not correspond to those certified in accordance with the provisions of Annex D, or if the inspectors find that there are items on board the aircraft other than those permitted by Article IV, as provided for in paragraph 1 of this Section. If the observing Party is unable to demonstrate that the aircraft, its sensors and associated equipment correspond to those certified and that there is no equipment on board other than that permitted, the observed Party has the right to prohibit the observation flight pursuant to paragraph 1 of Section I of Article VIII. The two Parties may also agree that the flight should be conducted despite these circumstances. In accordance with paragraph 3 of Section I of Article VIII, the facts for the prohibition must be stated in the mission plan, and within seven days all States Parties must be provided, through diplomatic channels, a written explanation for this prohibition in the mission report. If the observed Party prohibits the flight, the aircraft must promptly depart from the territory of the observed Party. In this event, the observation flight will not count toward the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 10 of Section I requires the observed and observing Parties to prepare a pre-flight inspection report upon completion of the pre-flight inspection of the aircraft and its sensors. This report will state that the aircraft, its sensors and associated equipment correspond to those certified in accordance with Annex D and that there is no equipment on board the aircraft other than that permitted by Article IV. Such a report would not be required if, in accordance with paragraph 8 or 9 of this Section, the observing Party decided to cancel the flight or if the observed Party decided to prohibit the flight. In both cases, however, the circumstances must be explained in the mission plan and in the mission report.

Paragraph 11 of Section I establishes that signature of the preflight inspection report by the observed Party signifies its agreement for the observing Party to use that aircraft to conduct the observation flight.

Section II, entitled "Pre-Flight Inspection of Sensors of the Observed Party," consists of ten paragraphs that describe the preflight inspection of sensors installed on an aircraft provided by the observed Party and sets forth specific procedures for the conduct of such an inspection.

Paragraph 1 of Section II establishes the purpose of the preflight inspection of the sensors, which is to confirm that the sensors and the associated equipment correspond to those certified in accordance with the provisions of Annex D. To fulfill this purpose, the observing Party has the right to conduct a pre-flight inspection.

Paragraph 2 of Section II requires the observing Party, upon arrival of the inspectors at the location of the pre-flight inspection— which was notified in accordance with paragraph 5 of Section I of Article VI and confirmed by the observed Party in accordance with paragraph 6 of that Section—to provide to the observed Party: (A) a list of the inspectors, not to exceed five; (B) a list of the items of equipment that they intend to use during the inspection; and C) the plan for the inspection.

Paragraph 3 of Section II requires a designated individual from the observed Party, prior to the commencement of the pre-flight inspection, to: (A) brief the observing Party the inventory procedures it intends to use to confirm that all items brought on board by the inspectors have been removed at the end of the inspection; (B) conduct an examination and inventory of each such item, together with the inspectors; and (C) brief the inspectors on all safety precautions that they must observe during the inspection.

Paragraph 4 of Section II permits the inspection to begin only upon completion of the formal arrival procedures and limits the inspection to eight hours.

Paragraph 5 of Section II establishes the right of the observed Party to provide its own escorts to accompany the inspectors throughout the inspection to confirm that the inspection is conducted in accordance with the Treaty. In this regard, the observing Party must facilitate the inspection in accordance with procedures established for the certification—contained in paragraph 7 of Section II of Annex D—which include permitting the inspectors to confirm the number and configuration of each sensor, familiarize themselves with the installation of each sensor, obtain a demonstration of the control and operation of each sensor, and familiarize themselves with flight test data.

Paragraph 6 of Section II establishes the inspectors right of access to the sensors and associated equipment in the same manner established for the certification, which provides for access to the entire aircraft and opening compartments or removing panels or barriers to the extent necessary to permit examination of any sensor and associated equipment. In so doing, however, the inspectors must comply with the same constraints as required for the certification, as provided for in paragraph 11 of Section II of Annex D, such as not conducting the inspection in a manner that degrades, damages, or prevents subsequent operation of the aircraft or its sensors, alters the electrical or mechanical structure of the aircraft or sensors, or impair the airworthiness of the observation aircraft. During the examination, the inspectors have the right to take measurements, make notes, sketches, similar records and recordings, which they may retain, as provided for in paragraph 12 of Section II of Annex D.

Paragraph 7 of Section II requires the inspectors to leave the observation aircraft after the pre-flight inspection has been completed. The observed Party may then use its own inventory procedures to confirm that all equipment used during the inspection has been removed from the aircraft; pursuant to subparagraph 3(A) of this Section, these procedures must have been explained to the observing Party prior to the beginning of the inspection. If, in the course of the conduct of the inventory procedures, the observing Party is unable to demonstrate that all inspection equipment has been removed to the satisfaction of the observed Party, i.e., that all the inspection equipment brought on board the aircraft was removed from the aircraft, the observed Party has the right to prohibit the observation flight in accordance with paragraph 1 of Section I of Article VIII. In accordance with paragraph 3 of Section I of Article VIII, the facts for the prohibition must be stated in the mission plan, and within seven days all States Parties must be provided, through diplomatic channels, a written explanation for this prohibition in the mission report. If the observed Party decides to prohibit the flight, the observation flight will not count toward the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 8 of Section II requires the inspectors to immediately inform the observed Party if they establish that any of the sensors or associated equipment on board the aircraft do not correspond to those certified in accordance with the provisions of Annex D. If the observed Party is unable to demonstrate that the sensors and associated equipment correspond to those certified, the observing Party has the right to: (A) agree to use an alternative package of sensor types or capabilities proposed by the observed Party; (B) conduct the observation flight according to the original mission plan; (C) accept a delay in the commencement of the observation flight to permit the observed Party to rectify the problem; or (D) cancel the observation flight, and immediately depart the territory of the observed Party. With respect to delaying the commencement of the flight, there are two outcomes: (A) if the problem is resolved, the flight will be conducted according to the mission plan, revised as necessary; or (B) if the problem is not resolved, the observing Party will depart the territory of the observed Party without conducting the flight. In accordance with paragraph 6 of Section I of Article VIII, the facts for the prohibition must be stated in the mission plan, and within seven days all States Parties must be provided, through diplomatic channels, a written explanation for this prohibition in the mission report.

Paragraph 9 of Section II states that, if the observing Party leaves the territory of the observed Party without conducting the observation flight, as the observing Party has the right to do after canceling the flight in accordance with subparagraphs 8(C) and 8(D) of this Section, the flight will not count toward the active quota of the observing Party or the passive quota of the observed Party.

Paragraph 10 of Section II requires the observed and observing Parties to prepare a pre-flight inspection report upon completion of the pre-flight inspection of the sensors and associated equipment installed on the observation aircraft. This report will state that the sensors correspond to those certified in accordance with Annex D. Such a report would not be required if, in accordance with paragraph 8 of this Section, the observing Party decided to cancel the flight or if, in accordance with paragraph 7 of this Section, the observed Party decides to prohibit the flight. In both cases, however, the circumstances must be explained in the mission plan and in the mission report. This paragraph also establishes that signature of the pre-flight inspection report by the observing Party signifies its agreement to use that aircraft to conduct the observation flight.

Section III, entitled "Demonstration Flights," consists of eight paragraphs that contain the procedures for conducting demonstration flights.

Paragraph 1 of Section III establishes the right of the observed Party to request the observing Party to conduct a demonstration flight on an observation aircraft that the latter provides. Such a flight must be conducted after the pre-flight inspection and must permit the inspectors to observe the functioning of the sensors to be used during the observation flight. Sufficient data must be collected during the flight to allow the inspectors to confirm that the capabilities of the sensors are in accordance with paragraph 8 of Article IV of the Treaty, which states that, when the observation aircraft is provided by the observing Party, the aircraft may be equipped with sensors in each sensor category that do not exceed the capability specified in paragraph 2 of Article IV.

Paragraph 2 of Section III establishes the right of the observing Party to request the observed Party to conduct a demonstration flight on an observation aircraft that the latter has provided. Such a flight must be conducted after the pre-flight inspection and it must permit the inspectors to observe the functioning of the sensors to be used during the observation flight. Sufficient data must be collected during the flight to allow the inspectors to confirm that the capabilities of the sensors are in accordance with paragraph 9 of Article IV of the Treaty, which states that, when the observation aircraft is provided by the observed Party, the aircraft must be equipped with sensors from each sensor category at the maximum capability specified in paragraph 2 of Article IV.

Paragraph 3 of Section III sets forth the basic obligations and conditions for the conduct of the demonstration flight: (A) the demonstration flight must be performed in accordance with the procedures for the in-flight examination conducted during the certification of an observation aircraft, as provided for in Section III of Annex D; (B) the demonstration flight may not last longer than two hours; (C) the observed Party must provide calibration targets—in accordance with the specifications for such targets contained in Appendix 1 to Annex D—in the vicinity of the airfield at which the pre-flight inspection is to be conducted; (D) delays caused by weather or problems with the aircraft provided by the observed Party or its sensors will not count against the allotted time for the demonstration flight, unless otherwise agreed; (E) the observed Party must process the data collected by the sensors at a facility in the vicinity of the airfield at which the pre-flight inspection is to be conducted—in the presence of personnel from the observing Party and in accordance with Sections II and III of Article IX; and (F) the cost of the demonstration flight, including the provision of data recording media and the processing of data, as distributed in the manner determined by the Open Skies Consultative Commission in Decision Number One (dealing with the distribution of costs arising under the Treaty).

Paragraph 4 of Section III establishes the right of the observing Party to add an extra 24 hours to the 96 hours allowed for the observation flight if the observed Party requests a demonstration flight. Such an extension, however, will not affect the right of other States Parties to conduct observation flights within that 24-hour period. This is an exception to the general rule, as set forth in paragraph 3 of Section I of Article VI, that no State Party is obliged to accept more than one observation flight at any one time during the 96-hour period. Since it is the observed Party’s choice to request the demonstration flight, the observed Party cannot, in exercising that right, foreclose the rights of other States Parties to conduct observation flights that had been notified as beginning within that 24 hours. In addition, paragraph 9 of Section I of Article VI requires the observed Party to extend the 96-hour period pursuant to paragraph 4 of Section III of Annex F if additional time is required by the observing Party for the unrestricted execution of the mission plan.

Paragraph 5 of Section III requires the observing Party to accomplish the demonstration flight, if it requests such a flight on the aircraft provided by the observed Party, within the 96-hour period established pursuant to Article VI, Section I, paragraph 9. That paragraph, however, by using the words "unless otherwise agreed," permits the Parties to agree on the duration of that period, which could allow for an extension even under these circumstances.

Paragraph 6 of Section III provides the remedies for the observed Party if it is not satisfied that the capability of any sensor installed on the observation aircraft provided by the observing Party is in accordance with the provisions contained in Article IV, paragraph 8:(A) if the ground resolution of the sensor is dependent upon height above ground level, the observed Party may propose an alternative minimum height above ground level at which that sensor may operate; (B) if the ground resolution of the sensor is not dependent upon height above ground level, the observed Party may prohibit the operation of that sensor during the observation flight; or.(C) the observed Party may prohibit the observation flight pursuant to Article VIII. In each case, an explanation would have to be provided in the mission plan.

Paragraph 7 of Section III provides the remedies for the observing Party if it is not satisfied that the capability of any sensor installed on the observation aircraft provided by the observed Party is in accordance with the provisions contained in Article IV, paragraph 9: (A) the observing Party may agree to use an alternative package of sensor types or capabilities, as proposed by the observed Party; (B) if the ground resolution of the sensor is dependent upon height above ground level, the observing Party may propose an alternative minimum height above ground level at which that sensor may operate; (B) if the ground resolution of the sensor is not dependent upon height above ground level, the observing Party may conduct the observation flight as planned, and the cost of the data recording media would be borne by the observed Party, (D) the observing Party may accept a delay in beginning the flight to permit the observed Party to rectify the problem—if that problem is rectified, the flight will proceed according the flight plan, as revised if necessary; if that problem is not rectified, the observing Party would cancel the flight and depart the territory of the observed Party; and (F) the observing Party may cancel the flight pursuant to Article VIII and immediately depart the observed Party's territory.

Paragraph 8 of Section III states that if the observation flight is prohibited or cancelled, as set forth in paragraphs 6 and 7 of this Section, no observation flight will be counted against the active quota of the observing Party or the passive quota of the observed Party. In addition, the State Party requesting the demonstration flight must convey the matter to the Open Skies Consultative Commission. In any event, the circumstances of any cancellation or prohibition have to be noted in the mission plan and, subsequently, in the mission report, which is provided to all States Parties in accordance with paragraph 21 of Section I of Article VI.

Annex G—Flight monitors, flight representatives and representatives

Annex G, entitled "Flight Monitors, Flight Representatives, and Representatives," consists of two sections that set forth the rights of flight monitors, flight representatives and representatives with respect to their participation in the conduct of observation flights. Flight monitors, as defined in paragraph 18 of Article II, are individuals who perform duties on behalf of the observed Party and who are on board an aircraft provided by the observing Party. Flight representatives, as defined in paragraph 19 of Article II, are individuals who perform duties on behalf of the observing Party and who are on board an aircraft provided by the observed Party.

Representatives, as defined in paragraph 20 of Article II, are individuals who perform duties on behalf of the observing Party, who have been designated by the observing Party in accordance with Article XIII, and who are on board an aircraft designated by a State Party other than the observing Party or the observed Party. This third category of personnel was created specifically to deal with the situation in which an observing Party might arrange with a third Party for the provision of an aircraft and at least part of the crew, including the pilot-in-command. In this circumstance, some States Parties were concerned to emphasize the role and authority of the personnel of the observing Party, designated "representatives."

Section I, entitled "Flight Monitors and Flight Representatives," consists of eight paragraphs that set forth the rights of flight monitors and flight representatives.

Paragraph 1 of Section I establishes that this Annex applies to personnel who have been designated in accordance with Article XIII; pursuant to paragraph 2 of Section I of Article XIII, individuals serving as flight monitors, flight representatives, and representatives are deemed to be accepted by the other Party unless they have been rejected. Paragraph 1 also establishes the right of each State Party to have at any one time on board the aircraft the number of flight monitors and flight representatives as set forth in Section III of Article VI, which also governs the activities of such personnel with respect to the organization and conduct of observation flights. Finally, paragraph 1 requires each State Party to facilitate the activities of flight monitors and flight representatives pursuant to this Annex.

Paragraph 2 of Section I requires the observed Party to appoint one of the flight monitors as chief flight monitor, who must be a national of the observed Party. The observing Party must appoint one of the flight representatives as chief flight representative, who must be a national of the observing Party.

Paragraph 3 of Section I establishes the right of the flight monitors and flight representatives, in preparing for the observation flight, to: (A) acquaint themselves with the technical literature relating to the functioning and operation of the sensors and the flight operation manual of the observation aircraft; and (B) acquaint themselves with the equipment of the observation aircraft relating to the control of the flight regime and the functioning and operation of the sensors installed on the observation aircraft.

With respect to permitting the flight monitors and flight representatives to have access to technical literature relating to the functioning and operation of the sensors, instructions on the inflight operation of each sensor must be provided to each State Party taking part in the certification pursuant to subparagraph 6(C) of Section I of Annex D, and technical information on each sensor installed on an observation aircraft must be provided to all States Parties pursuant to paragraph 10 of Article IV. Such information would form the basis of the technical literature available to the flight monitors and flight representatives. In addition, pursuant to Article V and paragraph 3 of Annex C, information on navigation, communications and landing aids must be provided to all State Parties when an aircraft is designated as an observation aircraft.

Paragraph 4 of Section I establishes the right of flight monitors and flight representatives to: (A) remain on board the observation aircraft throughout the observation flight, including any stops for refueling and emergencies; (B) bring on board the observation aircraft and use maps, flight charts, publications, and operations manuals; (C) move unencumbered about the aircraft, including the flight deck, during the observation flight, except in situations where flight safety reasons would not so permit—as determined by the pilot-in-command, pursuant to paragraph 16 of Section I of Article VI—and where activities of the flight crew would be interfered with; (D) monitor compliance with the flight plan and observe the flight regime of the aircraft and the functioning and operation of the sensors; (E) listen to internal and external radio communications on board the aircraft and make internal radio communications; and (F) record the parameters of the flight regime and the functioning and operation of the sensors on maps, charts, and notepads.

Paragraph 5 of Section I establishes the additional rights of the chief flight monitor to: (A) consult with the flight crew regarding compliance with the national flight rules and the provisions of the Treaty; (B) observe the activities of the flight crew, including activities on the flight deck, during the observation flight, and monitor the functioning and operation of the flight and navigation instruments of the aircraft; (C) provide recommendations to the flight crew regarding compliance with the flight plan; (D) ask the flight crew, without interfering with their activities, for information on the flight regime; and (E) communicate with air traffic control authorities as appropriate, and help relay and interpret communications from air traffic control authorities to the flight crew and from the flight crew to the air traffic control authorities about the conduct of the observation flight, for which the chief flight monitor has the right to make external radio communications using the radio equipment on the observation aircraft.

Paragraph 6 of Section I requires the chief flight monitor to advise the flight crew if he believes that the aircraft is deviating from the flight plan, and permits him to inform the air traffic control authorities of any deviations from the flight plan that he believes could threaten flight safety.

Paragraph 7 of Section I establishes the additional rights of the chief flight representative to; (A) consult with the flight crew regarding compliance with the national flight rules and the provisions of the Treaty; (B) observe the activities of the flight crew, including activities on the flight deck, during the observation flight, and monitor the functioning and operation of the flight and navigation instruments of the aircraft; (C) ask the flight crew without interfering with their activities, for information on the flight regime; and (D) receive an explanation from the flight crew as to the reasons for any deviation from the flight plan. Permissible reasons for deviations from the flight plan are contained in paragraph 1 of Section II of Article VIII. In addition, pursuant to paragraph 4 of Section II of Article VIII, the pilot-in-command has the right to curtail an observation flight in the event of technical difficulties affecting the safety of the aircraft.

Paragraph 8 of Section I establishes the right of flight representatives to direct the operation of the sensors during the observation flight. Flight representatives also have the right, upon notification to the observed Party prior to the commencement of the observation flight, to operate the sensors during the flight. If the flight representatives exercise their right to operate the sensors, however, the observed Party would not be held responsible for any failure or inadequacy in the quality of the data collected by the sensors due to the operation of the sensors by the flight representatives.

Section II, entitled "Representatives," consists of three paragraphs that set forth the rights of representatives.

Paragraph 1 of Section II establishes the right of an observing Party using an observation aircraft designated by a third State Party to have on board the aircraft at any one time the number of representatives set forth in Section III of Article VI.

Paragraph 2 of Section II requires the observing Party to appoint one of its representatives as chief representative, who has the same rights as the chief flight representative specified in Section I of this Annex. In addition, the chief representative: (A) advises the pilot-in-command regarding compliance with the provisions of the Treaty; (B) may monitor compliance by the observed Party with the provisions of the Treaty; and (C) may receive an explanation from the pilot-in-command as to the reasons for any deviations from the flight plan. Since the pilot-in-command is not carrying out duties on behalf of the observed Party in such a situation, and therefore not held responsible as the observed Party for his actions, additional arrangements dealing with the relationship between the observing Party and the flight crew will be worked out by the States Parties involved pursuant to paragraph 2 of Section I of Article VI.

Paragraph 3 of Section II establishes the rights of representatives to exercise the same rights accorded to flight representatives, as specified in Section I of this Annex.

Annex H—Coordination of planned observation flights

Annex H, entitled "Coordination of Planned Observation Flights," provides procedures which States Parties may use in order to avoid potential time conflicts regarding the conduct of observation flights over the same State Party during a given quarter of the year. While it could apply to flights over any Party, its primary objective is to avert timing conflicts for flights over the country or countries that have heaviest demand, which at the present time is Russia/ Belarus. Any coordination undertaken under the provisions of this Annex does not remove the obligation of a State Party to provide prior notification of its intention to conduct an observation flight, pursuant to paragraph 5 of Section I of Article VI, within 72 hours of estimated time of arrival on the territory of the observed Party. Nor does the fact that such coordination may be carried out by other States Parties remove opportunities for a State Party not participating in the coordination process to conduct an observation flight within a given quarter; nevertheless, the scheduling of such flights must be accommodated within whatever agreement may be reached by the other States Parties to coordinate their planned flights. Thus, there is an incentive to participate in the coordination process.

Paragraph 1 establishes the right of each State Party receiving an active quota following the annual distribution of active quotas— which is conducted pursuant to paragraph 7 of Section I of Article III—to notify all other States Parties of its plans to utilize all or part of its active quota during the following year. Such notification will be provided no later than November 1 of each year, and will indicate the number of observation nights that the State Party plans to conduct over the territory of other States Parties during each quarter of that year.

Paragraph 2 limits the total number of observation flights planned and notified in accordance with paragraph 1 of this Annex over the territory of any one State Party during a given quarter to 16. In addition, no State Party shall be obliged to accept more than one observation flight over its territory at any time during the 96hour period allowed for arrival formalities, pre-flight inspection and the observation flight—as specified in paragraph 9 of Section I of Article VI—unless that State Party has requested a demonstration flight in accordance with paragraph 3 of Section I of Article VI, in which case that State Party must accept an overlap observation flight and the beginning of a new observation flight, of up to 24 hours.

Paragraph 3 requires States Parties that have provided the notification pursuant to paragraph 1 of this Annex to hold consultations, if necessary due to potential time conflicts, to avoid such conflicts in their planned observation flights. If agreement cannot be reached during such consultations, the issue will be resolved by the drawing of lots among the States Parties involved. This paragraph also establishes the schedule for such consultations and for notification of the resulting sequence of observation flights based on these consultations or the drawing of lots. For the first quarter (January through March), the consultations will begin immediately upon receipt of the notification, and the resulting sequence must be notified by the previous November 15. For the second quarter (April through June), the consultations will begin February 1 and the resulting sequence must be notified by February 15. For the third quarter (July through September), the consultations will begin May 1, and the resulting sequence must be notified by May 15. For the fourth quarter (October through December), the consultations will begin August 1, and the resulting sequence must be notified by August 15.

Paragraph 4 requires each State Party to notify all States Parties planning to conduct observation flights over its territory of each flight for which it intends to provide its own observation aircraft. Such notification will be provided no later than seven days after receiving the notification of the resulting sequence of observation flights, as provided for in paragraph 3 of this Annex for the flights to be conducted in the upcoming quarter.

Paragraph 5 establishes the right of each State Party that has not provided a notification pursuant to paragraph 1 of this Annex, that has not notified its plans to utilize all of its active quota, or that has not conducted an observation flight during the quarter for which it had notified its intent to conduct such a flight, to utilize such remaining part of its active quota if such observation flight can be accommodated within the expiration agreement reached by the other State Parties pursuant to paragraph 3 of this Annex.

Annex I—Information on airspace and flights in hazardous airspace

Annex I, entitled "Information on Airspace and Flights in Hazardous Airspace," consists of three paragraphs that require each State Party to provide information on its airspace. Such information is essential to other States Parties in order to permit them to plan the flight to and from the territory of that State Party and to ensure the safe conduct of the observation flight. In addition, information on hazardous airspace is required in order to develop the mission plan, which, in accordance with subparagraph 4(C) of Section II of Article VI, must take into account information on hazardous airspace, as provided in accordance with Annex I. This provision is not intended to limit access to hazardous airspace. In accordance with paragraph 2 of Section II of Article VI, the mission plan may provide for an observation flight that allows for the observation of any point on the entire territory of the observed Party, including areas designated by the observed Party as hazardous airspace in the source specified in Annex I.

The provision of information on hazardous airspace is required, therefore, not as a restriction, but so that all Parties may be aware of such situations in their planning. Many participants in the Open Skies negotiations, including the United States, wanted in particular to ensure that such information on hazardous airspace was available in advance, so as to rule out the possibility that an observed Party might seek to create difficulties for an observation flight by inventing unjustified hazardous airspace at the last moment, after a mission plan had been filed.

The definition of "hazardous airspace" is contained in paragraph 32 of Article II; the related definitions of "prohibited area," "restricted area," and "danger area" are contained in paragraphs 33, 34, and 35, respectively. These follow ICAO practice, and are concerned with hazards to flight but may not be used to restrict areas for national security purposes.

Paragraph 1 requires a State Party to provide in accordance with ICAO provisions, upon the request of another State Party, information on: (A) its airspace structure, as published in the Aeronautical Information Publication (AIP) series; (B) detailed information on all hazardous airspace; and (C) airfield information and arrival and departure procedures for each of its points of entry, points of exit, Open Skies airfields, and alternate airfields and refueling airfields for its points of entry, points of exit, and Open Skies airfields. Such information must be provided no later than 30 days after receipt of the request but no earlier than 90 days after entry into force of the Treaty. Annex 15 to the Convention on International Civil Aviation, entitled "International Standards and Recommended Practices for Aeronautical Information Services," contains the ICAO provisions that will be followed in providing this information.

Paragraph 2 requires each State Party providing information under paragraph 1 of this Annex to promptly notify any changes in that information to those States Parties who had requested the information. The ICAO documents entitled "Notice to Airmen" (NOTAM), however, are not required to be provided.

Paragraph 3 requires each State Party to notify, no later than 90 days after entry into force of the Treaty, all other States Parties of the source of the information to be provided in accordance with paragraph 1 of this Annex. Thus, the source of the information must be provided by a State Party prior to the beginning of the obligation of that State Party to provide the information itself, i.e., no later than 90 days after entry into force of the Treaty, when the obligation to provide the information itself begins no earlier' than 90 days after entry into force. By knowing in advance of the source of such information, other States Parties have an opportunity to decide whether it is in their interest to request that information pursuant to paragraph 1 of this Annex. Many participants insisted that the source be specified, so as to make more difficult the introduction of artificial hazardous airspace declarations invented solely for the purpose of interfering with an Open Skies flight.

Annex J—Montreux Convention

Annex J deals with the Montreux Convention and its relation to the Open Skies Treaty. It consists of two paragraphs.

The first paragraph provides that observation flights conducted under the provisions of the Treaty providing for the observation of the entire territory of States Parties shall not prejudice the Montreux Convention of July 20, 1936. The Montreux Convention sets forth provisions regarding the transit of the Straits, including by aircraft. The Straits consists of the Straits on the Dardanelles, the Sea of Marmora and the Bosphorus.

Paragraph 1 makes clear two points. The first, which reemphasizes the underlying principle of the Treaty on Open Skies, is that the entire territory of the States Parties to the Treaty shall be open to observation flights. All participants, including the Republic of Turkey, wished to emphasize that Open Skies flights will be able to observe all points of the territory covered by the Montreux Convention, notwithstanding the provisions of that Convention which allows Turkey to establish restricted areas. The second point is that any observation flight conducted pursuant to the Treaty on Open Skies will not prejudice the provisions set forth in the Montreux Convention. This second part was inserted to assure Turkey's rights under the Montreux Convention, including the establishment of restricted areas, would not be prejudiced by Open Skies flights over such areas.

The second paragraph of Annex J provides that the routing and notification of transit flights of aircraft for the purpose of the Treaty falling within the scope of Article 23 of the Montreux Convention shall be governed by the provisions of that Article. Article 23 of the Montreux Convention reads as follows:

In order to assure the passage of civil aircraft between the Mediterranean and the Black Sea, the Turkish Government will indicate the air routes available for this purpose, outside the forbidden zones which may be established in the Straits. Civil aircraft may use these routes provided that they give the Turkish Government, as regards occasional flights, a notification of three days, and as regards flights on regular services, a general notification of the dates of passage.

The Turkish Government moreover undertakes, notwithstanding any remilitarisation of the Straits, to famish the necessary facilities for the safe passage of civil aircraft authorized under the air regulations in force in Turkey to fly across Turkish territory between Europe and Asia. The route which is to be followed in the Straits zone by aircraft which have obtained an authorization shall be indicated from time to time.

Since transit flights in the context of Open Skies are designed to bring an observing Party to or from the territory of an observed Party, all participants agreed that their routing and notifications could be governed by Article 23 of the Montreux Convention since in the case of observation flights, discussed in paragraph 1, there is no requirement for observation of territory during a transit flight.

Annex K—Information on film processors, duplicators and photographic films, and procedures for monitoring the processing of photographic film

Annex K, entitled "Information on Film Processors, Duplicators and Photographic Films, and Procedures for Monitoring the Processing of Photographic Film," consists of two sections that provide for the exchange of information on the developing of film and samples of that film, as well as procedures for monitoring film developing.

Section I, entitled "Information on Film Processors, Duplicators and Photographic Films," consists of three paragraphs that describe the exchange of information and film samples.

Paragraph 1 of Section I requires each State Party, when notifying other State Parties of film processors or duplicators that it intends to use—as required prior to the commencement of the ground examination during the certification process, pursuant to subparagraph 3 (A)(3) of Section II of Annex D—to provide the following manufacturer's information: (A) name of the processor or duplicator; (B) the maximum and minimum width and length, if applicable, of film which may be processed or duplicated. (C) each type of film that may be processed or duplicated in that film processor; and (D) each step in the process for each type of film.

Paragraph 2 of Section I requires each State Party, when providing information on the types of film that it intends to use—as required prior to the commencement of the ground examination during the certification process, pursuant to subparagraph 3 (A)(2) of Section II of Annex D—to provide appropriate manufacturer's information for each type of film, such as effective film speed, resolution/modulation, spectral sensitivity and optical specular density or sensitometric characteristics. The actual information to be provided will depend upon the national practices of the film manufacturer.

Paragraph 3 of Section I establishes the right of a State Party to receive unexposed samples of all types of film, the chemicals for processing the film, and instructions for processing and duplicating the film.

Section II, entitled "Monitoring of Film Processing and Duplication," consists of four paragraphs that establish the rights of States Parties to monitor the processing and duplication of film.

Paragraph 1 of Section II establishes the right of States Parties taking part in the certification to monitor the processing and duplication of the film used during the in-flight examination. That paragraph also establishes the right of the observed and observing Parties to monitor the processing and duplication of the film used during a demonstration flight and an observation flight.

Paragraph 2 of Section II establishes the right of States Parties monitoring the processing and duplication of film to bring with them and use listed equipment. Such equipment, however, may not be used in a manner that disrupts the processing or duplication of the film.

Paragraph 3 of Section II requires the States Parties, prior to processing the film, to check the processing equipment and chemicals to confirm that the sensitometric data for the processing of that type of film meets the proper specifications. Unless otherwise agreed, the film will not be processed or duplicated until the sensitometric data meets the proper specifications.

Paragraph 4 establishes the right of States Parties, prior to the processing of the film, to check the processing equipment and chemicals to confirm that the washing and fixing process is suitable for the purposes of permanent archive storage. This is done by exposing and processing a test film of the same type used.

Annex L—Open Skies Consultative Commission

Annex L consists of four sections. Section I deals with the general provisions of the Open Skies Consultative Commission. Section II deals with the annual review of active quotas. Section III deals with extraordinary observation flights and Section IV deals with additional fields for the use of the Open Skies regime.

Section I, entitled "General Provisions," addresses the procedural and administrative aspects of the Open Skies Consultative Commission. Article X, also entitled "Open Skies Consultative Commission," establishes the Open Skies Consultative Commission and sets forth the general framework in which it is to operate. Annex L sets forth the general procedures of the Open Skies Consultative Commission. This was noted in Article X, paragraph 7, which provides that the provisions for the operation of the Open Skies Consultative Commission are set forth in Annex L.

The introduction to Section I provides that procedures and other provisions relating to the Open Skies Consultative Commission are established in this Annex pursuant to Article X. This introduction establishes the clear link between this Section and Article X, both of which should be read together when referring to the obligations and duties of the Open Skies Consultative Commission.

Paragraph 1 of Section I provides that the Open Skies Consultative Commission shall be composed of representatives designated by each State Party. Paragraph 1 also provides that alternates, advisers and experts of a State Party may take part in the proceedings of the Open Skies Consultative Commission as deemed necessary by that State Party. This paragraph makes clear that during the proceedings of the Open Skies Consultative Commission, issues may arise that may require the use of advisers and experts and a State Party may invite such experts and advisers to take part in the Open Skies Consultative Commission proceedings. Alternates may also take part in the Open Skies Consultative Commission proceedings. Most importantly, the paragraph makes clear that each State Party to the Treaty has a right to be represented in the Open Skies Consultative Commission.

Paragraph 2 of Section I provides that the initial session of the Open Skies Consultative Commission shall open within 60 days of the signature of the Treaty. Paragraph 2 further provides that the Chairman of the opening meeting shall be the representative of Canada. According to paragraph 2, the initial session of the Open Skies Consultative Commission was to open within 60 days of March 24, 1992. The initial session of the Open Skies Consultative Commission opened on April 2, 1992.

Paragraph 3 of Section I provides that the Open Skies Consultative Commission shall meet for no fewer than four regular sessions per calendar year, unless it decides otherwise. Paragraph 3 also provides that extraordinary sessions shall be convened at the request of one or more States Parties by the Chairman of the Open Skies Consultative Commission, who shall promptly inform all other States Parties of the request. Paragraph 3 further provides that such sessions shall open no later than 15 days after receipt of such a request by the Chairman. Paragraph 3 makes clear that the Open Skies Consultative Commission shall meet on a regular basis. Extraordinary sessions may be convened in addition to the four regular sessions per calendar year. These extraordinary sessions can be held if only one State Party requests that one be convened. In this respect, the paragraph makes clear that the States Parties desired the Open Skies Consultative Commission to meet regularly, and more often as required, to establish a predictable and efficient method for addressing issues related to the implementation of the Treaty.

Paragraph 4 of Section I provides that sessions of the Open Skies Consultative Commission shall last no longer than four weeks, unless it decides otherwise. The purpose of this paragraph is to place a limit on the number of weeks in which the Open Skies Consultative Commission is to meet. It was believed that meeting four times per year for four weeks each would provide sufficient time to cover issues regarding the implementation of the Treaty. However, a mechanism was provided for extended sessions, if so desired by the States Parties; a decision to extend a session would have to be made by the Open Skies Consultative Commission.

Paragraph 5 of Section I provides that States Parties shall assume in rotation, determined by alphabetical order in the French language, the chairmanship of the Open Skies Consultative Commission. Paragraph 5 also provides that each Chairman shall serve from the opening of a session until the opening of the following session, unless otherwise agreed. This paragraph eliminates the need to decide which representative from which State Party will chair meetings during the sessions. It is clear that the Chairman at the beginning of the session will remain the Chairman until the opening of the following session, including extraordinary sessions, regardless of the length of the session.

The representative from Canada chaired the session from April 2, 1992 to its end. The representative from Canada will continue to be the Chairman during the interim period between sessions until the opening of the following session. Canada will be obligated to perform duties associated with the Chairmanship until the fall session. If a State Party wishes to convene an extraordinary session after the conclusion of the initial session, that State Party would inform the representative from Canada, who is responsible for informing all other States Parties of the request and of guaranteeing that the extraordinary session opens no later than 15 days after receipt of such a request. However, at the opening of that session, the chairmanship would change from Canada to the representative from the Kingdom of Denmark, pursuant to paragraph 6 of this Annex, which follows Canada in alphabetical order in the French language. It should be noted that the paragraph does Specify "unless otherwise agreed;" therefore, the Open Skies Consultative Commission can agree to follow a different procedure in a particular situation.

Paragraph 6 of Section I provides that representatives at meetings shall be seated in alphabetical order of the States Parties in the French language. This paragraph, self-explanatory in nature, establishes further administrative details for the Open Skies Consultative Commission.

Paragraph 7 of Section I provides that the working languages of the Open Skies Consultative Commission shall be English, French, German, Italian, Russian and Spanish. These are the six languages of the authentic texts of the Treaty as designated in Article XIX.

The languages specified in this paragraph also serve as those languages that a State Party may select from for use by personnel for all activities associated with the observation flights, pursuant to Article VI, Section I, paragraph 4(B).

Paragraph 8 of Section I provides that the proceedings of the Open Skies Consultative Commission shall be confidential, unless otherwise agreed. Paragraph 8 also provides that the Open Skies Consultative Commission may agree to make its proceedings or decisions public. The intent of this is that the proceedings and decisions of the Open Skies Consultative Commission shall be for the sole purpose of the implementation of the Treaty. The sense of .the word "confidential" is not intended to indicate or imply that the proceedings are automatically to be classified "CONFIDENTIAL" pursuant to United States security classification regulations.

Paragraph 9 of Section I provides that during the period of provisional application, and prior to June 30, 1992, the Open Skies Consultative Commission shall settle the distribution of costs arising under the Treaty. (See analysis of decision One intra.) Paragraph 9 also provides that the Commission shall also settle as soon as possible the scale of distribution for the common expenses associated with the operation of the Open Skies Consultative Commission.

Paragraph 9 is the result of a protracted debate over issues regarding costs arising under the Treaty, It was decided that issues on cost would be settled as early as possible but after signature of the Treaty and during the period of provisional application.

The specific cost issue regarding the scale of distribution for the common expenses associated with the operation of the Open Skies Consultative Commission was not given a time limit by which the issue is to be resolved. Rather, it is to be settled as soon as possible.

It should be noted that the negotiators decided that the scale of distribution of the costs of the initial session of the Open Skies Consultative Commission shall be the same as that agreed for the Open Skies negotiations. This provided a temporary solution until a permanent distribution could be agreed among the States Parties.

Paragraph 10 of Section I provides that, during the period of provisional application, the Open Skies Consultative Commission shall develop a document relating to notifications and reports required by the Treaty. Paragraph 10 also provides that such document shall list all such notifications and reports and shall include appropriate formats as necessary. It is important that this task is accomplished as soon as possible prior to entry into force of the Treaty because the Treaty has approximately 50 required notifications and reports and therefore approximately 50 corresponding formats appropriate for those notifications and reports. These should be established prior to the need to make full use of them once the Treaty enters into force.

Paragraph 11 of Section I provides that the Open Skies Consultative Commission shall work out or revise, as necessary, its rules of procedure and working methods. Section I has been applied provisionally pursuant to Article XVIII, Section I, paragraph 1.

Article XVIII, Section I, paragraph 2 provides that the period of provisional application will be provisionally applied for 12 months. This means that the operations of the Open Skies Consultative Commission will terminate on March 23, 1993, unless the Treaty enters into force prior to that time or the States Parties agree to extend the period of provisional application.

Section II addresses the annual review of active quotas. It consists of a chapeau and three paragraphs.

The chapeau to Section II provides that procedures for the annual review of active quotas as foreseen in Article III, Section I, paragraph 7 shall be as set forth in the following three paragraphs in Section II. Article III, Section I, paragraph 7 provides that after entry into force of the Treaty, the distribution of active quotas shall be subject to an annual review for the following calendar year within the framework of the Open Skies Consultative Commission. It further states that in the event that it is not possible during the annual three week review to arrive at an agreement on the distribution of active quotas with respect to a particular State Party, the previous year's distribution of active quotas with respect to that State Party shall remain unchanged.

Paragraph 1 of Section II provides that States Parties wishing to modify all or part of the past year's distribution with respect to their active quota shall notify all other States Parties and the Open Skies Consultative Commission, by October 1 of each year, of those States Parties over which they wish to conduct their observation flights during the next calendar year. It also states that such proposed modifications shall be considered by the States Parties during this review, according to the rules set forth in the following paragraphs of this Section.

Paragraph 2 of Section II provides that if the request for observation flights over the territory of any given State Party does not exceed its passive quota, then the distribution shall be established as requested, and presented to the Open Skies Consultative Commission for approval.

Paragraph 3 of Section II provides that if the requests for observation flights over the territory of any given State Party exceed its passive quota, the distribution shall be reestablished by .general agreement among the interested States Parties, and presented to the Open Skies Consultative Commission for approval.

This paragraph makes clear that a process of negotiations must occur between the concerned States Parties if the demand for overflights of a given State Party exceeds its passive quota. In that case, negotiations on how to accommodate demands for overflights vis-a-vis that State Party within its passive quota will take place among the interested States Parties; their agreement will be presented to the Open Skies Consultative Commission for approval.

It should be noted that, in both paragraphs 2 and 3, the States Parties interested in the modification of all or parts of the past year's distribution of active quotas are to finalize those numbers before the revised numbers are submitted to the Open Skies Consultative Commission for final approval. In any event, the previous year's distribution of active quotas with respect to that State Party will remain unchanged if it is not possible to arrive within three weeks at an agreement on the distribution of active quotas with respect to that State Party.

Section III addresses extraordinary observation flights. During the negotiations of the Treaty, many delegations expressed an interest in the conduct of observation flights to deal with particular unforeseen circumstances, and which would therefore require additional specific procedures. This section consists of four paragraphs.

Paragraph 1 of Section III provides that the Open Skies Consultative Commission shall consider requests from the bodies of the Conference on Security and Cooperation in Europe authorized to deal with conflict prevention and crisis management and from relevant international organizations to facilitate the organization and conduct of extraordinary observation flights over the territory of a State Party but only with its consent.

The paragraphs thus establishes the responsibility of the Open Skies Consultative Commission to consider an extraordinary flight upon the request from a body of the Conference on Security and Cooperation in Europe or from a relevant international organization. The term "relevant" has been inserted to make clear that the international institution in question must be one that deals with issues related to those of conflict prevention and crisis management and that such extraordinary observation flights must be conducted in the interests of those types of issues. The word "relevant" further indicates that the organization must be concerned with issues and territory of States Parties to the Treaty on Open Skies. It should be noted that, initially, all members of the Open Skies Consultative Commission are also members of the Conference on Security and Cooperation in Europe, and would thus have a role in any decisions regarding a request from that conference.

Paragraph 2 of Section II provides that, should such a flight be requested and conducted, the data resulting from such observation flights shall be made available to the bodies and organizations concerned. In this particular instance, when data are being made available to an organization some of whose members were not States Parties to the Treaty. States Parties would have to consider whether, in taking positions within relevant international organizations, to support a request for an extraordinary observation flight.

Paragraph 3 of Section III provides that, notwithstanding any other provision of the Treaty, States Parties may agree on a bilateral and voluntary basis to conduct observation flights over the territory of each other, following Open Skies procedures regarding the conduct of observation flights. It also provides that, unless otherwise agreed by the States Parties concerned, the data resulting from such observation flights shall be made available to the Open Skies Consultative Commission.

Paragraph 4 of Section III provides that observation flights conducted under the provisions of this Section shall not be counted against the active or passive quotas of the States Parties involved. This is a very important provision because it makes clear that observation flights conducted pursuant to paragraph 1 or paragraph 3 of this Section do not count against either Party’s active or passive quota. This provision is designed to enhance the flexibility of the Treaty and emphasize the special character of these flights.

Section IV addresses additional fields for the potential application of the Open Skies regime and consists of two paragraphs.

Paragraph 1 of Section IV provides that States Parties may raise for consideration in the Open Skies Consultative Commission proposals for use of the Open Skies regime in additional fields, specifically citing the environment.

Paragraph 2 of Section IV provides that the Open Skies Consultative Commission may take decisions on such proposals or, if necessary, may refer them to the first and subsequent conferences called to review the implementation of the Treaty, in accordance with the provisions of Article XVI, paragraph 3. In conjunction with Article X, paragraph 2, any decision taken by the Open Skies Consultative Commission on this issue must be made by consensus. This paragraph sets forth the procedure by which the decision as to whether the Open Skies regime should be extended to other fields is to be made.

X. CBO cost estimate

U.S. Congress, Congressional Budget Office,

Washington, DC, October 21, 1992.

Hon. Claiborne Pell,

Chairman, Committee on Foreign Relations,

U.S. Senate, Washington, DC.

Dear Mr. Chairman: In response to your letter of July 22, 1992, the Congressional Budget Office has estimated the cost to the United States of the Open Skies Treaty. The Treaty would cost about $80 million initially for equipment and outfitting of aircraft and another $20 million annually for recurring costs. (All estimates are stated as budget authority in 1993 dollars.)

The Open Skies Treaty, signed on March 24, 1992, establishes procedures to provide for aerial observation of all the territories of participating countries. As currently envisioned, the United States will be obliged to accept 42 observation flights over its own territory, its '"passive" quota. Accordingly, the United States will have the right to conduct 42 observation flights as an observing party. This is its "active" quota. Although these quotas are subject to annual review, CBO has assumed that the steady state schedule will stay at 42 observation flights.

One-time costs.—GBO estimates that one-time costs associated with aircraft modifications, equipment purchases and initial training and support would be about $80 million. The fiscal year' 1993 appropriations bill for the Department of Defense provided about $80 million for these one-time requirements.

The Air Force has indicated that, initially, two WC-135 aircraft would be fully outfitted, while a third WC-135 aircraft would be modified with optical and video cameras. Later, the third aircraft could be retrofitted with the full sensor package. As shown in Table 1, modifications to existing aircraft constitute the largest portion of one-time costs. Although CBO has no precise method for determining the cost of these modifications, information provided by the Department of Defense indicate that these modifications—consisting of purchasing an auxiliary power unit to make all three aircraft self-sufficient in foreign states, an engine hush kit to conform to international guidelines on noise pollution, installing the sensors and related systems (sensor suites), and other support needs— would cost about $40 million.

Each sensor suite would consist of optical and video cameras, an infra-red line scanner, a sideways-looking synthetic aperture radar, and a system to annotate navigational data on the exposed sensor media. According to DoD, one sensor suite costs about $4 million— $1.2 million for the optical cameras, $50 thousand for the video cameras, $1 million for the line scanners, and $1.7 for the radars. Based on this information, and assuming that the third aircraft would be equipped with the full sensor package, the costs for these sensors would be about $12 million. In addition, two prototype synthetic aperture radars would be purchased at a total cost of about $8 million.

The treaty could increase sensor media processing and training costs. CBO is unable to estimate these costs, but the Air Force has indicated that the requirement to permit foreign observers into U.S. data processing facilities, as well as to process foreign film could contribute another $10 million to one-time costs. The Air Force has also indicated that another $10 million would be needed for flight certification of the crew and mock flight training, including the lease cost for the training aircraft. These costs are included in this estimate.

However, the estimate does not include any costs of buying new aircraft or replacing existing aircraft because the current inventory of WC-135 aircraft could handle increased operating tempos for several years.

RECURRING COSTS.—CBO estimates that costs associated with the treaty could be about $20 million annually although in the initial years these costs would be less.

The operating and support cost estimates for the active observation flights are based on the Air Force's experience with the WC135 aircraft. The annual operating costs for a squadron of three aircraft could be about $15 million, which includes the costs for military and civilian pay, fuel, maintenance, training, and support. These costs are based on each aircraft flying about 740 hours annually.

Passive quotas could require the United States to provide participant countries with necessary aircraft to conduct the observations. These missions would require significantly less flying time and somewhat less support from the United States. CBO estimates that the annual operating and support cost for passive missions is about $5 million, consisting primarily of fuel and maintenance costs.

The estimate does not include increased sensor media processing costs. The Air Force indicates that media processing would be carried out by people already performing similar duties and, therefore, no significant additional coat is anticipated.

I hope this information is useful. We will be happy to provide further details about the estimates. The CBO staff contact is Raymond Hall.

Sincerely,

James L. Blum,

(for Robert D. Reischauer, Director).

Table 1.—One-time and average annual costs under the Open Skies Treaty

(In millions of 1993 dollars]

One-time costs:

 
Aircraft modification 
40
Sensor equipment
20
Sensor media processing equipment and facilities
10
Initial training and support 10
Total, one-time costs
80
Annual costs:
 
Operating and Support:

 
Active Observation Flights
15
Passive Observation Flights
5
Sensor Media Processing
(1)
Total, annual costs 20


1 Less than $500,000.

Source: Congressional Budget Office based on data from the Department of Defense.

XI. APPENDICES

Report of Senate Select Committee on Intelligence

May 19, 1993.

Hon. Claiborne Pell, Chairman,

Ron. Jesse Helms, Ranking Minority Member,

Committee on Foreign Relations,

U.S. Senate, Washington, DC.

Dear Senator Pell and Senator Helms: The Select Committee on Intelligence is pleased to provide you with its report on "Intelligence and Security Implications of the Treaty on Open Skies," which was filed earlier today. The Open Skies Treaty is not an arms control treaty in the traditional sense of the limiting weapons numbers or capabilities and, therefore, does not require extensive monitoring of other countries compliance with its provisions. The Treaty does raise the following questions, however, which formed the basis of the Committee's report.

Does the Treaty contain ambiguities or present monitoring difficulties that are likely to lead to compliance questions?

What information gains will the United States obtain from this Treaty?

What sensitive or proprietary information might the United States lose as a result of other countries' observation of U.S. territory or overseas bases?

How effectively will U.S. security precautions limit the potential loss of such sensitive or proprietary information?

What costs will be incurred in order to implement the Treaty, analyze the information that is obtained, and protect U.S. security?

The Committee's report analyzes these issues and makes the following recommendations, which we invite the Foreign Relations Committee to consider:

Recommendation 1: After the first 1-2 years, the United States should not use its full active observation flight quota unless there is a clear likelihood of obtaining significant information through those flights. Unless an environmental sensing package is adopted under Open Skies, only two aircraft should be used for Open Skies flights after the transitional period.

Recommendation 2: The United States should make every effort to use a U.S. observation aircraft and sensors in its Open Skies observation flights.

Recommendation 3: The Senate should add a condition to the resolution of ratification to the effect that the United States shall not agree to Open Skies Consultative Commission approval of any new Open Skies sensor or of one with improved resolution until at least thirty days after notifying interested Committees of the Senate of its intention to do so; such notification shall include an analysis of the legal and security implications of the proposed change or changes.

Recommendation 4: The Executive branch should institute an outreach program to inform industry about the likely impact of the Open Skies Treaty and to offer appropriate assistance in safeguarding proprietary information that may be put at risk. Such assistance need not incur major costs to the government and could, if necessary, be user-funded.

Recommendation 5: Congress should consider legislation to create a new b(3) exemption to the Freedom of Information Act that would permit the Government to withhold information collected pursuant to the treaty from public disclosure.

The third recommendation may be of particular interest to the Foreign Relations Committee, as we propose that a condition be added to the resolution of ratification of the Open Skies Treaty. We understand that the Executive branch does not object to this proposal, and we believe that a condition of this sort would serve the national security as well as the interests of both our committees.

Thank you for offering us the opportunity to inform the Foreign Relations Committee of our interests and concerns regarding this Treaty.

Sincerely yours,

Dennis Deconcini,

Chairman.

John W. Warner,

Vice Chairman.

__________

INTELLIGENCE AND SECURITY IMPLICATIONS OF THE TREATY ON OPEN SKIES

I. The Open Skies Treaty and the Role of the Senate Intelligence Committee

The Open Skies Treaty was signed in Helsinki, Finland, on March 24, 1992, and was submitted to the Senate on August 12, 1992, for its advice and consent to ratification. The Senate Foreign Relations Committee has formal responsibility for reviewing all treaties before they are acted upon by the full Senate. The Senate Select Committee on Intelligence has prepared this Report to support the advice and consent process by providing both the Foreign Relations Committee and the Senate as a whole with its assessment of the intelligence and security issues raised by this Treaty.

The Intelligence Committee, which had been following the Open Skies talks closely since their inception in 1989, held a series of three briefings for staff in late 1992. On March 4, 1993, the Committee held a closed hearing on the Treaty at which it took testimony from Ambassador John H. Hawes, chief U.S. negotiator; Mr. Craig Chellis, Acting Chief of the DCI's Arms Control Intelligence Staff; Mr. Leo Hazlewood, Director of the National Photographic Interpretation Center; Major General Robert W. Parker, USAF, Director, DoD On-Site Inspection Agency; Mr. Ray W. Pollari, Acting Deputy Assistant Secretary of Defense/Counterintelligence and Security Countermeasures; and Brigadier General Teddy E. Rinebarger, USAF, Assistant Deputy Director for International Negotiations, Strategic Plans and Policy, the Joint Staff.

The Intelligence Committee sought and obtained from the intelligence community an inter-agency assessment of the likely information gains and losses resulting from the Treaty. The Committee also obtained an inter-agency assessment of the Treaty's counterintelligence and security countermeasures implications. Finally, the Committee submitted and received answers to a series of questions for the record.

The Open Skies Treaty is not an arms control treaty in tile traditional sense. It does not require the destruction or limit the capabilities of any weapons or other military equipment. It does not require, therefore, the same sort of monitoring through National Technical Means to determine other countries compliance that one finds, for example, in the START Treaty.

The observation flights that would be conducted pursuant to the Open Skies Treaty are very similar, however, to cooperative measures for verification that have grown out of arms control treaties. Thus, the flights would be implemented by many of the same U.S. Government agencies that implement arms control verification; the information collected by these flights would have to be analyzed by the U.S. intelligence community; and the issues of counterintelligence and security protection for U.S. personnel and for sensitive or proprietary information are similar to those faced in various onsite inspections for arms control purposes.

It is these issues of implementation costs and benefits and of security concerns and costs that warranted the Intelligence Committee's attention and are the focus of this report. After a short summary of relevant Treaty provisions, the report is organized around the following questions:

Does the Treaty contain ambiguities or present monitoring difficulties that are likely to lead to compliance questions?

What information gains will the United States obtain from this Treaty?

What sensitive or proprietary information might the United States lose as a result of other countries observation of U.S. territory or overseas bases?

How effectively will U.S. security precautions limit the potential loss of such sensitive or proprietary information?

What costs will be incurred in order to implement the Treaty, analyze the information that is obtained, and protect U.S. security?

The Select Committee on Intelligence approved this report and a longer, classified version by a vote of sixteen in favor, one opposed.

II. Background and Provisions of the Open Skies Treaty

A. BACKGROUND AND MEMBERSHIP

In May 1989, the United States proposed negotiations for an Open Skies agreement, modeled on the original Open Skies proposal made by President Eisenhower in 1955. Formal treaty negotiations commenced in early 1990 but failed to reach a conclusion. Talks resumed in September 1991. At the November negotiating session, the Soviet Union abandoned its previous opposition to the principle that all of a nation's territory would be open to observation.

By the time the Open Skies Treaty was signed on March 24, 1992, the Soviet Union had been dissolved. The signatories were the United States, Canada, four former Soviet republics—Russia, Belarus, Ukraine and Georgia—and 19 other European countries:

Belgium, Bulgaria, Czechoslovakia, Denmark, France, Germany, the United Kingdom, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Romania, Spain and Turkey. By its terms, the Treaty is also open for signature by the remaining former Soviet republics. To date, Kirghizstan is the only additional signatory.

In the six months after entry into force, any other country that participates in the Conference on Security and Cooperation in Europe (CSCE) may apply to join the Treaty, and may join if no existing Party objects- (Sweden and Finland played active roles in the Open Skies negotiations and are likely to join the Treaty.) At the end of the six month period, all countries, including countries outside of Europe, are eligible to apply to join the Treaty, again subject to the absence of an objection by any of the existing Parties.

B. OBSERVATION FLIGHT QUOTAS

Article III and Annex A of the Treaty set for each State Party a "passive quota" of observation flights that it must be prepared to accept from other Parties. This quota is based roughly on country size; Russia/Belarus (which is combined into one "group" for Treaty purposes; see below) and the United States would each accept up to 42 flights per year, the largest quotas under the Treaty. A Party's "active quota" of permitted overflights of other Parties may not exceed its passive quota. The allocation of flights over a given Party's territory would be determined annually through negotiations based on the desires of the other parties. NATO members apparently have agreed informally not overfly each other under the Treaty.

The Treaty sets reduced quotas and specifically allocates overflights for the period from the date of entry into force until December 31 of the following year. (The Treaty would enter into force 60 days after the deposit of instruments of ratification by the United States, Russia, Belarus, Ukraine, Hungary, Canada, France, Germany, Italy, Turkey, the United Kingdom, and at least nine other countries.) In this initial one-to-two-year period, each Party is allocated a passive quota of 75 percent of the annual passive quota designated in the Treaty,

The demand for overflights over NATO countries was such that the actual flights allocated are well below the 75-percent ceilings (except for Greece). For example, the only overflights of the United States assigned are four by Russia/Belarus. The Treaty assigns 28 overflights of Russia/Belarus for this initial period, divided among various Parties, including eight by the United States. The United States is also assigned one joint flight (with Canada) over Ukraine. The attached matrix shows all of the initial overflight allocations specified in Section II of Annex A to the Treaty.

The 75-percent rule would remain in effect on an annual basis until December 31 of the third year following the year during which the Treaty enters into force. After that three-to-four-year period, the full quotas would take effect.

The division of overflights would be subject to annual review. In the event that the Parties could not agree on the division of active quotas with respect to an observed country within three weeks, the previous year's distribution of active quotas with respect to that observed Party would be retained.

Chart shows first-year observation flights

A Party would be permitted to transfer all or part of its active quota to other Parties. The observed Party for a particular overflight would have to consent to the transfer, however, and no Party would be permitted to conduct more observation flights over the territory of another Party than a number equal to the lesser of 50 percent of its total quota or 50 percent of the other Party's total passive quota.

Article III, Section II of the Treaty allows for two types of "groups" that two or more Parties could form, within which active quotas could be redistributed. Redistribution within such groups would not be subject to the approval of the observed Party, but the 50-percent rule described above would apply. Under paragraph 2, a group may be formed that would redistribute only active quotas; this possibility has been discussed by members of the Western European Union (WEU). Under paragraph 3, two or more Parties may aggregate both active and passive quotas; Russia and Belarus have formed such a group for purposes of the initial designation of quotas. Article XIV of the Treaty makes Belgium, the Netherlands and Luxembourg a single State Party (Benelux) for all purposes other than their participation in the Open Skies Consultative Commission.

Section III of Annex L permits the Open Skies Consultative Commission to "consider requests" for "extraordinary observation flights over the territory of a State Party with its consent" from the CSCE or "other relevant international organizations." Extraordinary flights "shall not be counted against the active or passive quotas of the States Parties involved.” The clear intent of this provision is to permit flights on short notice (rather than through the usual quota allocation process) to assure one Party that a neighboring state was not massing forces for an attack. Parties have also discussed, however, the possible use of this provision for monitoring the effects of a major disaster such as an earthquake or a Chenobyl-like nuclear incident.

C. PROVISIONS GOVERNING THE OVERFLIGHTS

An observed Party would be required to accept aerial observation of any portion of its territory, subject only to restrictions based on legitimate flight safety concerns. Deviations by the observing Party from flight plans are permitted only in the event of weather difficulties affecting flight safety; aircraft problems; medical emergency; or air traffic control instructions related to acts of nature.

An observing Party would be required to provide notice 72 hours prior to the estimated arrival time in the observed country, at which time it would provide a mission plan containing "all information necessary to file the flight plan" and wait an additional 24 hours before beginning the overflight, which would have to be completed within 96 hours of the arrival time unless delays for a demonstration flight made an extension necessary. The Treaty designates entry/exit airports within each signatory country.

Pursuant to Article IV and Annex D of the Treaty, aircraft may be equipped with optical, video, infrared line-scanning and synthetic aperture radar sensors. The Treaty allows for the possibility that additional types of sensors, such an environmental sensors, could be added sometime in the future by unanimous agreement of the Parties, without the need for formal amendment of the Treaty. Indeed, the environmental sensor option is explicitly recognized in the preamble to the Treaty. Article IV requires that all sensors used on Open Skies flights be commercially available to all Treaty Parties.

Open Skies flights would be carried out by unarmed, fixed-wing aircraft. The observing Party could use its own or a third Party’s aircraft unless the observed Party exercised its right under the Treaty to use the so-called "taxi option," i.e., to require the observing Party to use an aircraft provided by the observed Party. Aircraft provided by the observed Party must meet Treaty standards for range and ability to carry observers and must have sensors that meet maximum Treaty-permitted capabilities. During the first three-to-four years, however, such aircraft need have only a single panoramic camera or two framing cameras and need not have along range.

Aircraft used for Open Skies flights would be subject to inspection to ensure that sensors on board were not more capable, or of a different type, than those permitted by the Treaty. In the event the aircraft was provided by the observing Party, the observed Party would be entitled to a demonstration flight of up to two hours, prior to the actual flight, to observe the functioning of the sensors. In the event the aircraft was provided by the observed Party, the observing Party would be entitled to such a demonstration flight. The observed Party would also have the right to have representatives on board during the actual overflight to monitor treaty compliance and ensure flight safety.

Pursuant to paragraph 4 of Article IX, Section I of the Treaty, data collected through Open Skies flights would be available to the observed Party and, for a fee, to all treaty Parties. Principles for determining this fee have not yet been adopted. Data "shall be used exclusively for the attainment of the purposes of this Treaty,' a provision which was adopted in part to bar their transfer to terrorist organizations.

D. THE OPEN SKIES CONSULTATIVE COMMISSION

Article X of the Treaty, which is of unlimited duration, establishes an Open Skies Consultative Commission to resolve issues of Treaty interpretation or compliance. The Commission would make decisions or recommendations—including decisions to admit new Parties to the Treaty or to permit new or improved sensors—only by "consensus," i.e., "the absence of any objection by any State Party."

E. WILL TREATY AMBIGUITIES LEAD TO COMPLIANCE QUESTIONS?

Because the Open Skies Treaty is not a traditional arms control agreement with arms destruction requirements or limitations on weapons capabilities, there are few specific injunctions to obey and, therefore, few areas in which compliance questions could arise. The Executive branch response to a Committee question for the record on this matter was: "Careful analysis has revealed no ambiguities in the Treaty that could result in significant implementation problems.”

Some difficulties could arise, however, in such areas as the conduct of overflights. One possibly troublesome provision is the requirement in subparagraph 4(G) of Article VI, Section II of the Treaty that flight paths neither "circle around a single point" nor "intersect at the same point more than once." A determined country could argue that this provision imposed no limitation on an elliptical (as opposed to circular) path around two foci that were extremely close to each other, or on a path that intersected at two barely separated points. There is no indication in the Treaty of how to interpret this provision in a practical sense, so disputes could well arise if one Party uses this provision as the basis for objecting to a proposed flight path.

While not specifying how to interpret the above provision, the Treaty does provide a process for handling disputes on this matter: the observed Party can propose changes to a flight path. The observing Party can then either agree on alternatives or cancel the flight and try again later.

One area in which a decision mechanism is not specified is what to do if representatives of the observed Party believe that the observing Party has used a sensor improperly. The observed Party controls both the air space and the ground, so it can always bring force to bear. But no means short of that is set forth for preventing the observing Party from leaving the country with improperly-gathered data. So any dispute in this area could well escalate to this level and become at least a minor diplomatic incident.

III. What Information Is The United States Likely TO Gain or Lose as a Result Of The Open Skies Treaty?

A. OVERVIEW

In his letter of August 12, 1992, submitting the Open Skies Treaty to the United States Senate, President George Bush stated that the Treaty's objective was "to enhance mutual understanding and confidence by giving all participants, regardless of size, a direct role in observing military or other activities of concern to them."

For the United States, this statement of objectives raises two fundamental questions. The first is what understanding and confidence the United States will gain in terms of information on military forces and activities that it does not already obtain through satellites or other overhead means. (A related question, discussed both here and in later sections of this report, is whether the additional expense of operating Treaty collection sensors and of exploiting and disseminating the information obtained will be a cost-effective use of the resources of the U.S. intelligence community.) The second basic question is what information about the United States will be made available through Open Skies, to whom, and with what impact on the national security.

The chief U.S. representative to the Open Skies Negotiations testified to the Committee that the United States does not expect to be the primary direct beneficiary, in terms of information gains, of the openness that the Treaty will provide. Rather, he stated, the greatest information gains resulting from the Treaty will go to the great majority of participants who do not operate National Technical Means. For those states, the Open Skies Treaty represents an important new capability. The U.S. Government believes that enabling the Parties to the Treaty directly and independently to collect reliable information on each other's military forces and activities will make a significant contribution to the security and confidence of all participants.

B. PERMITTED SENSORS AND ACCESS TO DATA UNDER THE TREATY

Paragraph 1 of Article IV of the Treaty specifies the permitted sensors as follows:

Except as otherwise provided for in paragraph 3 of this Article, observation aircraft shall be equipped with sensors only from amongst the following categories:

(A) optical panoramic and framing cameras;

(B) video cameras with real-time display;

(C) infrared line-scanning devices; and

(D) sideways-looking synthetic aperture radar.

The original (December 1989) U.S. and NATO position in the talks was to permit any and all imaging sensors, with each alliance determining among themselves how information acquired through Open Skies was to be shared. According to the chief U.S. negotiator, this provision was based on U.S. concerns that data collected by the Unites States or its allies under Open Skies should not be shared with the Warsaw Pact countries, since it might enable them to better assess their vulnerability to observation and thereby to improve their cover, concealment and deception techniques.

The chief U.S. negotiator testified that when the negotiations commenced in February 1990, it quickly became evident that this position would not be accepted. While all participants agreed on the need to ban signals intelligence, and all agreed that optical cameras should be included, there was no agreement between the former Soviet Union and most of the other participants on other potential categories of sensors.

Early in the negotiations, the East European states obtained agreement from the United States and its NATO allies that all participants would have access to sensor capabilities equal to those employed by any other participant. The East European governments no longer could depend on the Soviet Union for sensor support, nor did they wish to. At the same time, the most advanced Western sensors remained subject to technology transfer controls. One result of this agreement was thus to impose a ceiling on the sensors that the United States and its NATO allies would be prepared to employ under the Treaty.

Under Article IX, Section IV of the Treaty, all participant states may purchase the raw data produced by any participating state's flight over any other. U.S. officials indicate that this wide access to raw data will greatly multiply the value of the regime to individual participating countries, enabling them to compile data well beyond what they could acquire with their own observation flights. The dissolution of the Warsaw Pact, which left its Central and East European members with radically reoriented security concerns and without a formal security structure within which data might be shared, prompted strong arguments for broader sharing of Open Skies data, especially regarding Russia. In addition, the decision (discussed above) to precisely define the categories and capabilities of permitted Open Skies sensors made it possible for countries to calculate their vulnerability to observation, regardless of data sharing; this negated NATO's earlier argument for withholding data from other Parties.

In the spring of 1991, the United States and its NATO allies proposed that Open Skies sensors include optical and electro-optical cameras, synthetic aperture radar, infrared line-scanning systems, air sampling systems, and multispectral systems (although NATO agreed that the last two systems would have a lower priority). Agreement was reached in the Treaty on the inclusion of panoramic and framing optical cameras, video cameras, synthetic aperture radar, and infrared line-scanning systems. Air sampling systems and multispectral systems were not accepted, but would be logical candidates in an environmental sensing package. Pursuant to paragraph 3 of Article IV, additional sensor systems can be agreed by consensus of the Open Skies Consultative Commission.

C. SENSOR CAPABILITIES AND LIMITATIONS

Optical panoramic and framing cameras

In determining sensor specifications, the United States and its allies worked from postulate that Open Skies optical imagery should permit analysts to recognize armored vehicles, i.e., to distinguish a tank from a truck, an objective which was eventually accepted by all participants. This recognition could be achieved with a ground resolution of 30 centimeters (60 cm Ground Resolved Distance). This standard would enable Open Skies to contribute meaningfully to confidence building, as well as supplement arms control verification regimes. Many of the European states, for example, sought the ability to observe and count armored vehicles east of the Urals, beyond the reach of the verification provisions of the Treaty on Conventional Armed Forces in Europe (CFE).

This imagery standard does not permit the collection of technical intelligence—e.g., on models of tanks and their equipment—and thus did not trigger major security concerns in participating countries. This limitation was important to the military representatives of the former Soviet Union. Although they recognized that the United States could acquire higher quality imagery with its unilateral National Technical Means, they were reluctant to permit diffusion of such higher-quality imagery on a multilateral basis to all the participants in the Treaty. The chief U.S. negotiator believes that this may have reflected not only tactical military concerns, but also essentially political concerns about the implications of greater openness.

The tank-recognition standards also served to minimize certain counterintelligence and anti-terrorist concerns in the West. Specifically, there was concern that imagery obtained by many nations might fall into the hands of terrorist who would use it for planning acts of terrorism.

Video cameras

The standard for video cameras is the same as that for optical cameras, 30 centimeters ground resolution. U.S. officials believe that the greatest potential value for the United States will come from optical imagery; and flying at the best altitude for the optical cameras will generally preclude the collection of quality imagery by video cameras. But video cameras offer the option of achieving 30cm resolution (with a more restricted field of view) flying beneath low-altitude clouds.

Synthetic aperture radar

The standard for synthetic aperture radar (SAE) was set at 3 meters ground resolution, which allows recognition of the presence of very large equipment or buildings, but is not sufficient for recognition of individual pieces of equipment. This level was primarily determined by U.S. concerns that systems with a better resolution would pose unacceptable technology transfer problems. The Soviet Union had initially not wanted any synthetic aperture radar. In April 1990, it moved to accept SAR in principle, but at a ground resolution capacity of 10 meters. In the fall of 1991, it accepted inclusion of SAR at 3 meters ground resolution. The Defense Nuclear Agency has been given the task of developing a dependable SAR package that meets the requirement for such poor resolution and qualifies for export under U.S. technology transfer limitations.

Infrared line-scanning devices

The standard for infrared line-scanning devices was set at 50 centimeters ground resolution. The United States and its NATO allies would have preferred a 30-centimeter standard. The Soviet Union resisted this, arguing that infrared imagery of that quality would provide an observer with tactical information which would be useful in attack planning, thereby going beyond the confidence-building purposes of the Treaty regime. For this reason, the Soviet Union had initially objected to the inclusion of any infrared systems. The ultimately-agreed provision allows an infrared line-scanning system with a 50-centimeter ground resolution, but not until after the initial three years of implementation of the Treaty, unless the observed Party agrees to earlier use.

D. INFORMATION BENEFITS TO THE UNITED STATES

At least initially, Open Skies will offer the United States little of value in terms of information. If improved sensors or an environmental sensing package were to be approved in the future, this calculation could change.

The Defense Nuclear Agency (DNA) is developing systems used for planning and alerting Open Skies missions. One of these is the Open Skies/Mission Analysis and Planning System to plan and track both prospective U.S. overflights and proposed overflights of the United States by other Parties. The modeling system will enable the United States to develop missions that maximize the potential value of Open Skies imagery.

If Russia exercises its option to require U.S. use of a Russian aircraft and sensors, then little or no wide-area coverage may be obtained during the transitional period. This is because the AN-30 aircraft and the cameras that Russia will use during the first three years cannot provide moderate-resolution imagery at high altitudes; so coverage will have to be sacrificed in order to provide the required resolution.

Another potential benefit of the Open Skies regime will be the availability of imagery from other than sensitive sources for use in various diplomatic fora. Consistent with the explicit purpose of Open Skies to enhance international transparency and openness, this material could be used selectively in diplomatic and under appropriate circumstances, public fora.

Open Skies imagery could be used by arms control inspectors to help orient themselves at START and CFE inspection sites. It could also be used to brief participating states officials and help inspectors from other countries improve their CFE inspections.

E. POTENTIAL FUTURE VALUE

Open Skies may have the most benefits for non-time-sensitive issues where research based on bonus coverage is useful. According to the testimony of Executive branch officials, the greatest informational benefits to the United States from the Open Skies Treaty may rest in future environmental sensing packages, either under this Treaty or pursuant to a future agreement. Environmental monitoring could:

—Supply the environmental community with unique data on previously denied areas;

—Be the basis for additional environmental cooperation between signatory nations; and

—Provide the model for a future global airborne environmental monitoring regime.

Some specific areas for environmental monitoring could include:

—Arctic monitoring and assessment;

—Forestry research;

—U.S.-Russia hazardous waste assistance;

—Globi change research;

—Natural and man-made disasters; and

—Cross-border transport of airborne contaminants.

Future sensors for environmental monitoring could include:

—Whole-air samplers;

—Particulate collectors;

—Laser radars;

—Multispectral or hyperspectral sensors;

—Synthetic aperture radars (L, C, and X bands); and

—Color infrared photography.

F. LIMITATIONS IN EXPLOITING OPEN SKIES IMAGERY

Executive branch officials testified that exploitation and analysis of imagery acquired under the Open Skies Treaty will be limited by several factors,

Limited exploitation resources

As is discussed in the following selection of this report, uncertainties about the volume, format and quality of imagery, about possible future sensors, about the need for automated support, and about the ultimate value of the data make it difficult to estimate the exact level of resources that will be devoted to exploiting Open Skies imagery. At least for the time being, all of the resources needed to exploit Open Skies imagery will come from existing funds and personnel.

This means that any exploitation and analysis resources-people or dollars—expended in support of the Open Skies Treaty will have to be diverted from other efforts in this field. Executive branch managers recognize the distinct possibility that the costs of Open Skies exploitation will exceed the expected value of the data.

Absence of automated data annotation system

Annex B, Section II of the Treaty provides for annotation of Open Skies film and other data, and permits—but does not require—use of an automated annotation system. An automated system would be far preferable to manual annotation.

Both Russia and the United States are developing annotation systems for possible use on Open Skies aircraft. It is not clear whether the Russian system will be compatible with U.S. exploitation equipment.

G. VULNERABILITY OF SENSITIVE U.S. INFORMATION TO OPEN SKIES OBSERVATION

The basic theory of Open Skies observation is that the medium resolution sensors permitted by the Treaty will enable Parties to monitor the size and disposition of each other's military forces. Russia/Belarus, the "Group of States Parties" that was the only requester for rights to overfly the United States, may gain new insights only from some of the sensors, since Russia already has imaging satellites. But countries with no National Technical Means could purchase the Russian data and/or, in later years, mount their own flights if they perceived a need to do so.

Open Skies surveillance could also provide a country useful information about U.S. defense systems and manufacturing capabilities, as well as radar signature data for targeting purposes. Having said this, however, the intelligence value of each sensor would be limited—for other countries, just as for the United States. This is true largely because U.S. security countermeasures (which are discussed in the next section of this report) should be able to deny access to sensitive information that goes beyond what the U.S. Government is prepared to disclose for confidence-building purposes.

H. POLICY ON THE USE OF OBSERVATION AIRCRAFT

The Open Skies Treaty (especially in paragraphs 1 and 6 of Article VI, Section I) permits the observed Party to require that its own aircraft and sensors be used on an observation flight; this has become known as the "taxi flight" option. The United States successfully pushed for an agreement in the Open Skies Consultative Commission (Decision Number Four) regarding minimum optical camera capabilities on "taxi flights" after the transition period. If Russian film is not compatible with U.S. exploitation equipment, however, the requirement to use a Russian aircraft and sensors could severely complicate the exploitation of Open Skies data.

From the security standpoint, requiring Russia/Belarus to use a U.S. aircraft and flight crew would eliminate the risk of clandestine airborne signals intelligence collection and would lessen the risk of improper use of permitted sensors, although it might also provide greater Treaty-permitted coverage than would Russians equipment during the transitional period.

Russia's decision on the "taxi flight" option may well be influenced by U.S. policy for flights by Russia/Belarus over our territory. If the norm of reciprocity governs Russian decisions, then U.S. imposition of "taxi flights" (to minimize the risk of illegal 'or improper Russian collection) would conflict with our interest in maximizing the usefulness of U.S. flights over Russia. If Russia's primary decision criteria were to be cost and convenience, it might be possible to agree on the use of a U.S. aircraft over the United States while still permitting U.S. aircraft to overfly Russia/Belarus.

In response to a Committee question for the record, the Executive branch stated U.S. policy on "taxi flights" as follows:

The U.S. does not intend to require states observing U.S. territory to utilize a U.S. aircraft, although it does retain the right under the Treaty to do so. We continue to believe, as we have from the beginning of the Open Skies negotiations, that the Treaty's goals of confidence- and security-building are best served by allowing the observing party to provide the aircraft it will use to conduct an observation flight. On a case-by-case basis, we may make an aircraft available to a participating state upon request. Such an arrangement would have no relation to the taxi option, but would simply constitute a lease under the provisions of the Treaty.

Conceivably, then, the United States will allow—or, in effect, require—participating countries to use their own or a third party's designated observation aircraft when overlying the United States, even if we are forced to use a "taxi flight" over their territory.

IV. How Effectively Will The Government Safeguard U.S. Personnel and Sensitive and Proprietary Information?

The counterintelligence and security countermeasures challenges raised by the Open Skies Treaty are somewhat different from those associated with previous agreements. There is sufficient similarity, however, that much of the experience gained in implementing those other agreements will be relevant to Open Skies. These functions will be performed, moreover, by many of the same agencies as in previous agreements.

The major human-source counterintelligence concern is to guard against other countries' use of observation or escort crews to assess, develop or run clandestine agents among U.S. personnel. Security concerns fall into two categories: those that arise from illicit intelligence collection activities that a foreign country might attempt during an overflight near U.S. territory or overseas installations; and those that arise from the observation that is actually permitted by the Treaty.

A. HUMAN-SOURCE COUNTERINTELLIGENCE CONCERNS

U.S. personnel and potentially hostile security services will be in contact only for relatively short periods of time in connection with any given overflight unlike the situation with some on-site inspection or portal monitoring teams pursuant to other treaties? Thus, even though Russian observers and escorts are expected to consist largely of air force and military intelligence (GRU) personnel, the potential vulnerability of U.S. personnel to hostile intelligence approaches will be relatively limited. As is done with U.S. inspectors and monitors under other treaties, the On-Site Inspection Agency plans steps to guard against any counter-intelligence threat.

B. GUARDING AGAINST ILLICIT INTELLIGENCE COLLECTION

The Open Skies Treaty specifically limits the types and capabilities of sensors to be employed in overflights, as discussed in the following section of this report. Several other Treaty provisions are designed to guard against the clandestine use of illegal, or illegally capable, sensors.

One example is paragraph 2 of Article IV, which requires that sensors be commercially available to all States Parties. This means that any country wanting to use an illegal sensor that was at all visible would have to disguise it as a commercially available system. Paragraph 7 of Article IV bans "the * * * retransmission * * * of [most] electronic signals from electro-magnetic waves" on an observation aircraft, and paragraph 2 of Article IX, Section I bans "[t]he transmission of data collected by sensors from the observation aircraft during the observation flight," thus making it very difficult to mount any illegal signals intelligence operation that would involve data forwarding (because any unknown signal coming from the observation aircraft would be prima facie evidence of a violation).

Article IV and Appendix D to the Treaty provide in some detail for the certification of observation aircraft and sensors, a process that may involve both on-the-ground inspection and in-flight tests to demonstrate the resolution of the sensors. Appendix F details how the observed Party may inspect the observing aircraft and sensors (after the observing Party inspects the sensors to be used in that inspection), again both on the ground and in a demonstration flight, before each observation flight. (The observing Party may require a demonstration flight if the observed Party requires use of a "taxi flight,") and Annex E provides for the use and inspection of external covers on the sensors before and after each observation flight.

Executive branch security officials testified and assured the Committee in answers for the record that they can adequately guard against the use of illegal sensors. The DoD On-Site Inspection Agency has arranged for expert teams to inspect all observation aircraft for both improper and clandestine sensors of all types. This does not mean, however, that one can ever have absolute certainty that no illegal intelligence collection is occurring.

The likelihood of Russian cheating scenarios was specifically discounted by the representative of the Joint Chiefs of Staff, as well as by civilian officials. This was due largely to U.S. security countermeasures and to the likely Russian interest in not being caught violating a confidence-building agreement.

To guard against improper use of permitted sensors (e.g.. taking pictures from too low an altitude, which would provide high-resolution imagery), Article VI, Section II and Article VIII, Section I of the Treaty require a detailed observation mission plan that "does not permit the observing Party to exceed the limitation on ground resolution for each sensor to be provided and approved by the observed Party in advance of the flight. Section III of Article VI permits the observed party to have at least two monitors and an interpreter on the observation flight, plus (if a large plane is used) one monitor "for each sensor control station" on the aircraft. Section II of Article VIII gives the observed Party "the right to prohibit the use of a particular sensor during a deviation that brings the observation aircraft below the minimum height above ground for operating that particular sensor or, if a flight deviates by more than 50 kilometers from the original flight path, "to prohibit the use of all sensors installed on the observation aircraft beyond that * * * limit."

The Department of Defense has sponsored the development of the Open Skies/Mission Analysis and Planning System (OS/MAPS) to aid in the analysis of proposed flight paths. The Passive Overflight Module (POM) of OS/MAPS will automatically analyze proposed locations and sensors to determine whether Open Skies sensor resolution will be met. OS/MAPS was developed by Northrop Corporation, under contract to the Defense Nuclear Agency, with the On-Site Inspection Agency helping to define requirements.

The Treaty does not specifically address the risk that a particular sensor would be operated when it should not be, either under the existing flight plan or contravening a prohibition declared by the observed Party due to a deviation from that plan. U.S. monitors on a flight would try to spot any infraction, but precise monitoring of the altitude above the ground and the angle at which each sensor is operated will not be a trivial task. (OSIA plans trial flights for this spring—partly to test U.S. equipment, partly to determine the precise vulnerability of particular U.S. sites, and partly to train U.S. observers and monitors.)

Since Article IX, Section I of the Treaty requires that all data remain on board the aircraft during an observation flight and then be placed in containers and sealed, an aggrieved observed Party should at least be able to protest any observed violation and object to the processing and/or retention of offending data. Such actions would likely constitute a compliance dispute requiring diplomatic action, and might even require a threat of force to prevent observers from leaving with improperly-gathered data.

C. MINIMIZING THE LOSS OF SENSITIVE OR PROPRIETARY INFORMATION DUE TO PERMITTED OBSERVATION

Even the observation that is permitted under the Open Skies Treaty could result in the compromise of sensitive information. Aerial observation of military movements or exercises, industrial plant configurations or activities, and outdoor testing, deployment or storage of equipment could give foreign countries direct or indirect insight into U.S. military capabilities and readiness beyond that which the U.S. Government is prepared to disclose for the purpose of confidence-building. It is also conceivable—although perhaps not likely, given the low resolution of Open Skies sensors— that proprietary industrial information could be compromised.

Although only Russia/Belarus has received an active observation quota to overfly the United States, the other Treaty Parties—who previously have had no better satellite sources than commercially available SPOT imagery from France—may purchase copies of the data from those flights. The Open Skies Treaty is open to accession by other countries, moreover, although all Parties must approve any accession by a country other than the former Soviet republics in the Caucasus and Central Asia. As a Department of Defense witness testified:

* * * the Treaty may eventually provide certain of the nations party to it with a first-ever opportunity to conduct observations from an airborne platform. In the ease of these nations, a considerable amount of information could be collected which may not have been previously available to them, and which could increase their knowledge and understanding of U.S. defense capabilities.

To help U.S. facilities and defense contractors prepare for treaty-related inspection or monitoring, including Open Skies observation flights, the Defense Department has created the Defense Treaty Inspection Readiness Program (DTIRP), an inter-agency program that is administered by the On-Site Inspection Agency. DTIRP provides seminars to educate site officials regarding overflight risks and cost-effective security countermeasures that may be taken to obscure such sensitive information as might otherwise be at risk. When information is obtained on Open Skies observation flight plans, an Open Skies alert system will notify facilities that may be subject to observation. Executive branch officials say that bilateral arrangements will be made with our allies for timely notice of Open Skies flights over Western Europe, so that U.S. facilities there can also take security precautions.

There is also some vulnerability to observation from Open Skies overflights of Canada, but this is viewed as minor. The preamble of the Treaty states that aerial observation is to be "with the intent of observing a single State Party or groups [sic] of States Parties," and in any case, sensors are not to be operated so as to reach more than 50 kilometers on either side of the aircraft with a ground resolution of 30 centimeters.

Security countermeasures could include moving something indoors or discontinuing certain activities or communications (the last as a precaution against illegal signals intelligence collection). Most of these measures, which are common in arms control inspections, should be relatively inexpensive and readily achieved. If major tests or exercises must be postponed, however, companies or military elements may sustain major costs.

The uncertain vulnerability of non-defense proprietary information to disclosure through Open Skies observation led the Executive branch to concentrate upon the security of U.S. military facilities and defense industry. The Intelligence Committee pressed the issue of non-defense trade secrets both in its March 4 hearing and in a question for the record, however, believing that the U.S. Government should not ignore even a slight risk that its arms control actions could affect the security of private information.

One concern was the organization of the federal government to handle this issue. While the Defense Department will prepare U.S. facilities and defense contractors for Open Skies, it has no charter to assist business firms that are not defense contractors. The Department of Commerce, which is working with non-defense firms to prepare for the Chemical Weapons Convention, had been encouraged to take the lead regarding Open Skies but had not been given a formal charter to do so.

The Assistant to the President for National Security Affairs, in recent letters to the Chairman and Vice Chairman of the Intelligence Committee, has informed the Committee of the following steps that the Executive branch is taking to address this question:

* * * An interagency working group has begun to explore steps that might be taken to notify private, non-defense companies about the Open Skies Treaty and possible flights over the United States. The Commerce Department, with other appropriate agencies, will work to devise options for such notification.

The Executive Branch will (a) develop a strategy for notifying private, non-defense companies of the nature and extent of Open Skies missions; (b) consider how private, non-defense companies might be able to take advantage of the DTIRP system managed by the Department of Defense and; (c) explore any other possible low-cost means of better informing private, non-defense companies whose proprietary information might be disclosed through Open Skies missions, about the Treaty.

Defense Department officials testified that they prepared to work with the Commerce Department to incorporate non-defense firms in a system to alert them to any Open Skies flightplans that would bring observers within 50 kilometers of them. Those firms could then take whatever security precautions they might believe necessary. The costs of making this system available to companies, and who should pay such costs, have not yet been determined.

D. LEGAL CONSIDERATIONS

A related issue to the protection of proprietary information is the legality and constitutionality of inviting a foreign country to surveil U.S. territory. The Committee asked this question for the record; the question and Executive branch response were as follows:

Question. What is the Executive branch's legal analysis of the constitutionality of surveilling (or permitting others to surveil) private facilities? Does the Government incur any liabilities thereby? Can such surveillance be used for law enforcement purposes (e.g., if it should reveal violations of environmental laws or illegal marijuana fields)?

Answer. We believe that the Treaty on Open Sides can be implemented in complete consonance with the U.S. Constitution. The decisions in California v. Ciraolo, Dov) Chemical Co. v. United States, and Florida v. Filey have established that generally aerial surveillance is not a "search" under the Fourth Amendment; the results of such surveillance may be used for law enforcement purposes. The Office of Intelligence Policy and Review of the U.S. Department of Justice concurs in this analysis of the "search" issue.

In Dow the Court left open the question as to the constitutionality without a warrant of '"highly sophisticated surveillance equipment not generally available to the public, such as satellite technology." However, equipment equivalent to or better than the Open Skies optical sensors (cameras) in resolution capability have been commercially available for years and thus no new issue is raised on that account. With respect to sensors that might be more invasive and powerful than optical sensors, such as synthetic aperture radar and infra-red devices, the Treaty on Open Skies provides the type of proper safeguards to legitimate privacy interests that the Court has identified in those cases as being relevant in its decision. Such safeguards include:

—making the fact of such overflights public knowledge (by means of concluding and publicizing the Treaty);

—prohibiting SIGINT equipment on board the aircraft;

—limiting the resolution of the sensors installed on the aircraft (the permitted resolution of the non-optical sensors is less than that of Open Skies optical sensors);

—limiting frequency and duration of flights with such sensors; and

—requiring that data collected by such sensors during observation nights be used exclusively for the attainment of the purposes of the Treaty.

Such safeguards established by the treaty, in addition to the overriding foreign policy interest in the contributions made by the Treaty on Open Skies for the development and strengthening of peace, stability, and cooperative security, made it unlikely that challenges to the admissibility of evidence obtained as a result of nights conducted pursuant to the Treaty on Open Skies based on the Fourth Amendment would be successful.

A possible legal concern relates to the potential dissemination of Open Skies imagery beyond official dissemination of Open Skies imagery beyond official government channels of the signatory nations. Data from on-site inspections under arms control agreements have been treated as classified information, but Open Skies data may not qualify for classification. If imagery should be come part of the public domain, it could be very difficult to ensure that Open Skies data are "used exclusively for the attainment of the purposes of this Treaty," as required by paragraph 4 of Article DC, Section I. Indeed, there would be at least some small risk that hostile nonsignatory nations or terrorists might acquire and exploit this imagery for military activity. Executive branch officials have considered this problem, but have not determined how serious it is or formally recommended any solution.

E. POSSIBLE IMPACT OF TREATY CHANGES

Paragraph 5 of Article X of the Treaty permits the Open Skies Consultative Commission (OSCC) to make decisions regarding both improvements in the resolution of existing sensors and even wholly new categories of sensors. Such OSCC decisions may be made without submitting them to the Parties as amendments to the Treaty. Thus, new or improved sensors could be authorized without Senate review or approval, even if the Executive branch were to give insufficient attention to security concerns or preparedness. While there has been no such unwise action in the Open Skies context thus far, the potential exists for problems in the future.

In planning for possible environmental sensing options, the Executive branch has considered such approaches as air sampling; laser radars (LIDAR), multispectral or hyperspectral imagery, and significantly different synthetic aperture radar (SAR) or infrared systems. New security concepts and capabilities may well be needed to meet the challenges posed by these sensors, especially if other countries should seek significantly greater U.S. overflight quotas than the four flights provisionally allotted to Russia/Belarus.

Environmental sensing packages could also significantly increase the chances of Open Skies flights developing evidence of illegal activity (e.g., violations of environmental laws or international agreements) by companies in the United States. The Executive branch's analysis of the admissibility of Open Skies data, quoted earlier in this section, did not specifically address the implications of such sensors. The reference to the Dow opinion not reaching "highly sophisticated surveillance equipment not generally available to the public, such as satellite technology," suggests that a challenge to air sampling, LIDAR, or other sensors might hinge on the sophistication of the collection or processing equipment.

V. THE COSTS OF IMPLEMENTING OPEN SKIES

Open Skies implementation costs can be divided into four categories: observation and security equipment (e.g., aircraft, sensors, inspection devices, etc.); observation, security and escort personnel; processing equipment and personnel; and analysis personnel. The first two categories are largely funded by the Department of Defense. The first category is by far the largest cost element; it is also the one that is farthest along, as major equipment contracts have been proceeding for over a year.

The office of Conventional Arms Control and Compliance in Office of the Under Secretary of Defense Acquisition is responsible for oversight of DoD's Open Skies implementation planning. The DoD On-Site Inspection Agency does much of the day-to-day planning and will recruit, train and manage mission personnel. The U.S. Air Force is responsible for acquiring the planned Open Skies aircraft and sensors, operating the aircraft for all U.S. Open Skies missions, maintenance of aircraft sensors, and initial processing of sensor output following missions. Each military service is responsible for the security of its facilities and/or operations that may be vulnerable to exploitation during foreign overflights. The Defense Nuclear Agency (DNA) is responsible for developing a prototype synthetic aperture radar (SAR) that meets both Treaty and export control requirements. DNA is also developing the OS/MAPS system for planning and alerting Open Skies missions and a treaty notification support system to transmit and receive treaty required notifications.

Roughly $93.7 million in Defense Department funds was appropriated in Fiscal Years 1992 and 1993 for implementation of the Open Skies Treaty. The bulk of this figure is for the modification of three WC-135 aircraft and the lease and modification of a Convair 580. (The WC-135's and the sensors are Government Furnished Equipment.) The Department of Defense is currently modifying one WC-135 aircraft, equipped with one panoramic and three framing cameras, to be used for observation flights during the phased implementation period 1993-1996). Two additional aircraft with full sensor packages—one panoramic camera, three framing cameras, two video cameras, an infrared line scanner and a synthetic aperture radar (SAR)—will be available in time for full Treaty implementation in 1997. The Convair, leased from Environmental Research Institute of Michigan (ERIM), will be used for mission training and sensor testing.

The Department of Defense has budgeted approximately $20 million in FY 94, $25 million in FY 95, $41 million in FY 96 and $37 million in FY 97 to continue implementation of the Treaty. These figures include costs for operation and maintenance of the aircraft, modification of the initial aircraft to full operational capability (FOC) standards, completing development and procurement of the SARs, media processing equipment, team proficiency training, and conduct of observation flights. The sharp increase in FY 96 is to fund the modifications to the initial aircraft.

These projected costs are based upon a set of planning assumptions that includes nine observation flights the first year, increasing to fifteen flights in FY 1995 and FY 1996 and some higher figure in later years. The assumptions also see overflights of U.S. territory rising to 15 flights in FY 1995 and FY 1996, and more thereafter.

If those assumptions were relaxed to a level of no more than 15 flights in the out-years, then it might well be possible to forego the third WG-135, as well as the operations and maintenance costs of the extra flights. (In practice, this might involve continuing to outfit the second and third aircraft, but releasing the first aircraft after the transitional period, rather than up-grading it to carry SAR and IR line-scanning systems.) This could save $25-30 million in FT 1996-1997.

Defense Department planners hold open the possibility that Open Skies aircraft costs could be offset to some degree, either by leasing the aircraft and flight crew to other countries for their Open Skies missions, or by using the aircraft to satisfy other OSIA transportation requirements. But major onsets to DoD's Open Skies costs are not especially likely. Open Skies exploitation costs will be met out of existing resources. No estimates have been developed of environmental sensor procurement or processing and analysis costs.

VI. Findings and Recommendations

A. VALUE OF THE OPEN SKIES TREATY

Finding

Barring the approval of new or improved sensors, the Open Skies Treaty will not provide significant information gains to the United States. Such gains may once have been a goal of the U.S. Government, but they were not achieved. If Russia should require U.S. use of a "taxi flight" with Russian cameras, moreover, exploitation of the optical data from observation flights over Russia/Belarus could be severely complicated.

The chief U.S. negotiator and other witnesses, including a representative of the Joint Chiefs of Staff, testified that Open Skies would further the major U.S. objective, which was to promote international stability by letting other countries observe each other's military forces. Judging the merits of this argument—or, in the absence of severe concerns regarding U.S. monitoring, counterintelligence or security capabilities, the merits of the Treaty as a whole—is not within the purview of the Select Committee on Intelligence.

Given the low likelihood of obtaining valuable data from U.S. overflights of Russia/Belarus with the currently-approved Open Skies sensors, three courses of action are open to the United States:

(1) Limit U.S. flights under Open Skies to the minimum level needed to demonstrate U.S. support for the Treaty;

(2) Make every effort to persuade Russia not to invoke its option to require the use of a "taxi flight" for U.S. observation of Russia/Belarus; and/or

(3) Press for early agreement on new or improved Open Skies sensors that would provide more useful data.

Recommendation 1

After the first 1-2 years, the United States should not use its full active observation flight quota unless there is a clear likelihood of obtaining significant information through those flights. Unless an environmental sensing package is adopted under Open Skies, only two aircraft should be used for Open Skies flights after the transitional period.

The Committee recommends that committees with jurisdiction over the defense budget enact language mandating these limitations on Open Skies implementation and requiring regular reporting on the cost and usefulness of Open Skies overflight data.

Recommendation 2

The United States should make every effort to use a U.S. observation aircraft and sensors in its Open Skies observation flights.

For example, since the U.S. observation aircraft and sensors are likely to provide better coverage during the transitional period than will the Russian aircraft and sensors, Russia/Belarus might agree to let U.S. overflights use the U.S. equipment in return for some arrangement that enabled them to use the same U.S. equipment in overflights of the United States.

B. FUTURE IMPROVEMENTS IN OPEN SKIES SENSORS

Finding

New or improved sensors could transform Open Skies into a more valuable information-gathering regime for the United States, but could also cause security or legal problems. Open Skies could be radically changed if environmental sensors were brought under the Treaty. This could be done by unanimous agreement of the Open Skies Consultative Commission without amending the Treaty. Environmental sensors could provide valuable data to scientists, disaster and humanitarian relief officials, and policymakers of all the States Parties. They could also raise Fourth Amendment questions if used in legal investigations or proceedings, however, and their potential security implications have not been analyzed.

Improved optical, infrared or synthetic aperture radar sensors could raise security concerns, and perhaps Fourth Amendment concerns as well.

Recommendation 3

The Senate should add a condition to the resolution of ratification to the effect that the United States shall not agree to Open Skies Consultative Commission approval of any new Open Skies sensor or of one with improved resolution until at least thirty days after notifying interested Committees of the Senate of its intention to do so; such notification shall include an analysis of the legal and security implications of the proposed change or changes.

C. PROTECTION OF SENSITIVE AND PROPRIETARY INFORMATION

Finding

Little or no sensitive defense information is likely to be compromised by Open Skies flights, beyond that which the U.S. Government is prepared to disclose for the purpose of confidence-building, A measure of protection can also be afforded to proprietary non-defense information, but its costs and benefits have not yet been determined.

Current limits on sensor resolution, combined with required delays between submission of a mission plan and the beginning of a limited observation period, effectively limit any country's ability to gain sensitive information from overflights of the United States or U.S. facilities overseas. Defense Department security analysis and warning to potentially vulnerable facilities will permit timely and cost-effective security countermeasures.

It is not clear to what extent proprietary non-defense information may be put at risk of disclosure through Open Skies observation. The Intelligence Committee believes, however, that the U.S. Government should not ignore even an uncertain risk that its arms control actions could affect the security of private information. The Committee is pleased, therefore, that the Executive branch has begun to develop a policy regarding the protection of proprietary non-defense information and is tasking the Commerce Department and other agencies to develop cost-effective measures to inform and assist non-defense industry.

Recommendation 4

The Executive branch should institute an outreach program to inform industry about the likely impact of the Open Skies Treaty and to offer appropriate assistance in safeguarding proprietary information that may be put at risk. Such assistance need not incur major costs to the government and could, if necessary, be user funded.

D. PROTECTION OF OPEN SKIES DATA

While the risk of publicly-disclosed Open Skies imagery or other data being used for purposes inconsistent with the Treaty is probably remote, such an outcome is not impossible. It would be prudent to take action to guard against improper use of such data. At the same time, however, it would seem out of keeping with the confidence-building objectives of the Open Skies Treaty either to classify this information or to enact a statute penalizing its improper use. A more limited and reasonable step would be to enact legislation exempting this information from the Freedom of Information Act, so that private or foreign interests cannot force its public release.

Recommendation 5

Congress should consider legislation to create a new b(3) exemption to the Freedom of Information Act that would permit the Government to withhold information collected pursuant to the treaty from. public disclosure.

B. Report of Senate Armed Services Committee

June 30, 1993.

Hon. Claiborne Pell,

Hon. Jesse Helms,

Committee on Foreign Relations,

U.S. Senate, Washington, DC-

Dear Claiborne and Jesse: The Committee on Armed Services has completed its review of the Treaty on Open Skies and has concluded that the Treaty promotes the national security interests of the United States. The Committee recommends that the Committee on Foreign Relations report the Treaty favorably to the Senate.

The Open Skies Treaty is not a traditional arms control treaty because it does not require the destruction or limit the capabilities of any weapons or other military equipment. Instead, the Treaty specifically allows aircraft overflights for limited observational purposes. Each of the observation flights conducted under the Treaty is governed by a regime similar to the cooperative verification measures provided for in such recent arms control treaties as the Intermediate Range Nuclear Force (INF) Treaty, Conventional Forces in Europe (CFE) Treaty, Protocols to the Threshold Test Ban Treaty (TTBT) and the Peaceful Nuclear Explosions Treaty (PNET), and the Strategic Arms Reduction Treaty (START). The Open Skies Treaty marks a new advance in arms control.

I. BENEFITS OF THE TREATY

The Treaty establishes the first confidence-building regime to cover all the territory of North America, Europe and the Asian part of Russia. Parties to the Treaty include all of NATO's 16 nations, Bulgaria, the Czech Republic, Hungary, Poland, Romania, the Slovak. Republic, Russia, Georgia, Belarus, Ukraine and Kyrgyzstan,

The Treaty is now open to signature by all countries of the former Soviet Union. Immediately upon entry into force, the Treaty will be open to requests for accession by the states participating in the Conference on Security and Cooperation (CSCE). Six months after entry into force, any state that will contribute to the objectives of the Treaty may make a request to the Open Skies Consultative Commission to accede to the Treaty.

Each participating country has agreed to open. its entire territory to short-notice, surveillance flights by unarmed aircraft capable of taking pictures 24 hours a day, with images clear enough to distinguish between a tank and a truck, in all weather. No signatory to the Treaty may hold any of its territory off-limits to overflights. The data derived from the overflights must be made available on a shared-cost basis to all signatories of the Treaty.

The Open Skies Treaty therefore represents the broadest international effort to date to promote openness and transparency of military forces and activities. More particularly, the Treaty:

Opens the territory of all signatories to observation, including territory formerly restricted due to national security concerns;

Empowers all signatory states, regardless of size, wealth, or level of technology, to acquire meaningful security information;

Makes advancements in available confidence-building tools by adding detailed procedures for aerial observation with agreed sensors and predetermined quotas, with no right of refusal;

Establishes a new framework for contacts, cooperation, and consultation among participating states; and,

Establishes a major precedent in reducing tensions, contributing to greater mutual understanding, and reinforcing peace and security.

Participating countries that lack sophisticated national technical means to monitor activities in other countries will benefit from the aerial monitoring and information-sharing provisions of the Treaty. The Treaty seeks to establish a new standard in security relations between former enemies by asserting that states have an interest in conducting themselves in a manner which can withstand the scrutiny of their neighbors. At a time of heightened nationalistic assertiveness, the Treaty makes available an important new, confidence-building measure to enhance international security.

Additionally, Open Skies imagery can be used by arms control inspectors to help orient themselves at START and CFE inspection sites. Open Skies imagery can also be used to improve CFE inspections and other verification regimes. The Open Skies regime Will provide imagery information, from other than sensitive sources, that can be readily used in diplomatic as well as public settings.

There are particular benefits to the United States in the use of the Treaty for crisis management as well as environmental monitoring. In the area of crisis management, the Treaty should contribute to regional stability by allowing neighboring signatory countries to inspect one another when tensions and suspensions are high. The Treaty specifically allows flights on short notice to assure a signatory country that a neighboring state is not massing forces for an attack.

The current signatories have accepted the idea that the Treaty has the potential to allow the monitoring of events unrelated to traditional conceptions of security, such as the environment or major natural disasters. The Treaty establishes a procedure for upgrading capabilities of the sensors over time or adding new sensor categories, if all parties agree. Air sampling devices have already been discussed as one type of new sensor that might be included in a revised sensor package. These devices would permit Open Skies overflights to monitor environmental degradation, a matter of considerable concern in the countries of Eastern Europe and the former Soviet Union, and could assist in the verification of the Chemical Weapons Convention (CWC).

II. SIGNIFICANCE OF THE TREATY FOR THE U.S. DEFENSE BUDGET

U.S. observation flights will be conducted by elements of the Department of Defense. As a result, most of the costs of implementation of the Treaty will be funded through the budget of the Defense Department.

A total of $93.7 million was authorized and appropriated for fiscal years 1992 and 1993 for implementation of the Open Skies Treaty. In particular, the Air Force plans to modify three WC-135 aircraft, which were previously used to monitor weather activities, to conduct the observation overflights. Most of the funding in fiscal years 1992 and 1993 is for the modification packages for the three WC-135 aircraft. The Air Force is currently in the process of modifying the first WG-135 aircraft, which will be equipped with one panoramic and three framing cameras, to be used during the initial implementation period of the Treaty (1993-1996). Completion of this modification effort is expected in July, 1993.

Modification of the remaining two WC-135 aircraft is planned to be completed in time for full implementation of the Treaty in 1997. These two WC-135 aircraft would contain the full sensor packages, including one panoramic camera, three framing cameras, two video cameras, an infrared line scanner and a synthetic aperture radar (SAR). In the interim, prior to the completion of the modification of the three planned aircraft, mission training and sensor training will be conducted on a modified Convair 580 aircraft which has been leased by the On-Sight Inspection Agency (OSIA).

Based on planning assumptions, the Department of Defense has budgeted $20 million in FY 1994, $25 million in FY 1995, $41 million in FY 1996 and $37 million in FY 1997 for implementation of the Treaty. These planning assumptions include nine U.S. observation flights over foreign countries in FY 1994, increasing to fifteen such flights in FY 1995 and FY 1996. Department of Defense planning as assumptions anticipate a higher number of observation flights in later years. The planning assumptions also include costs to the U.S. for the support it will provide to foreign countries conducting observation flights of U.S. territory. The number of foreign observation flights over U.S. territory is anticipated to rise to 15 flights in FY 1995 and FY 1996, and more in subsequent years.

U.S. support to foreign countries is prescribed by the Treaty and includes personnel participating in the preparation, conduct and certification of the foreign aircraft and sensors, and goods and services such as fuel and equipment servicing.

III. CONCERNS OF THE COMMITTEE

The Committee has several concerns related to the cost-effective use of Department of Defense resources under the Treaty in a period of declining budgets, the use of a foreign country's aircraft on an observation mission, and the implications for U.S. national security of the publicly available information gained through observation missions.

Open Skies will provide information about military forces and activities which, in specific situations, will be more readily usable in bilateral and multilateral diplomatic exchanges than sensitive data obtained from National Technical Means. However, the overall cost-benefit to the U.S., considering the additional expenses incurred for the operation of the flights, is questionable- National Technical Means will remain the most cost-effective way for the U.S. to collect information on a routine basis.

A second concern stems from a provision of the Treaty, known as the "taxi option", which permits the observed country to require that its own aircraft and sensors be used on an observation flight. If Russia requires the U.S. to use Russian aircraft under this provision, little or no wide-area coverage could be obtained during the transitional period of the Treaty. The short-range AN-30 aircraft and the cameras that Russia plans to use during the transition period cannot provide even moderate-resolution imagery at high-altitudes.

Finally, the Committee believes the Treaty raises a potential national security concern. The Treaty provides that "Data collected by sensors during observation flights shall be made available to States Parties * * * and shall be used exclusively for the attainment of the purposes of this Treaty.". While it would be inconsistent-with the provisions of the Treaty to sell or otherwise make available the information obtained during observation flights to states or groups not a party to the Treaty, the danger exists that a hostile group might acquire the information and exploit the imagery for criminal or military purposes.

IV. COMMITTEE RECOMMENDATIONS

The Committee believes that improved sensors for environmental monitoring would significantly enhance the effectiveness and usefulness of the Treaty. The Committee recommends that the United States pursue approval in the Open Skies Consultative Commission for such sensors during the initial three-year phase of the Treaty.

The Committee recommends that the United States make every effort to use United States aircraft and sensors in its Open Skies observation flights in order to assure maximum area coverage permitted by the Treaty and to maximize the usefulness of information obtained from the flights.

The Committee also recommends that action be taken to prevent the acquisition and improper use of data obtained from the observation flights by other signatory countries.

Lastly, the Committee supports the Foreign Relations Committee condition to the resolution of ratification regarding the changes to the sensors. We join the Foreign Relations Committee in recommending that the Congress receive advance notification of the costs to the United States of improved sensors, and advance information on their contribution to United States national security, prior to U.S. agreement in the Open Skies Consultative Commission to undertake sensor upgrades.

Sincerely,

Strom Thurmond,

Ranking Member

Sam Nunn,

Chairman.

C. Hearing on the Treaty of Open Skies with 12 annexes

(Treaty doc. 102-37)

U.S. Senate,

Committee on Foreign Relations,

Washington, DC, March 11, 1993.

The committee met, pursuant to notice, at 3 p.m. in room SD430, Dirksen Senate Office Building, Hon. Claiborne Pell (chairman of the committee) presiding.

Present: Senators Pell, Lugar, Coverdell and Mathews.

The chairman. I am delighted to welcome a panel of Executive Branch witnesses to discuss the Open Skies Treaty. The Open Skies Treaty was originally proposed by President Eisenhower in 1955 before the era of surveillance. Today, only the U.S. and Russia have extensive capabilities to photograph items of military interest using satellites. Other nations of Europe must depend upon cameras aboard reconnaissance aircraft. This Treaty will open the way for such reconnaissance in Europe to provide reassurance as to military activities- accordingly, it would appear that the Open Skies Treaty will build mutual confidence at this time of transition.

I was encouraged to receive a letter earlier this month from Secretary of State Christopher notifying me of his hope that the Senate would give favorable consideration to the Treaty, including its annexes, and offer its advise and consent to ratification at an early date. Secretary Christopher wrote that the Treaty "will contribute to mutual understanding and confidence-building by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of concern to them. The Treaty responds to the desire of many states for innovative means of strengthening security and stability, especially throughout Europe, including the states of the former Soviet Union."

[The letter referred to follows:]

The Secretary of State,

Washington, DC, March 4, 1993.

Dear Mr. Chairman: In advance of resumed Senate consideration of the Treaty on Open Skies, I take this opportunity on behalf of the President to express my strong support for the Treaty.

Proposed by the United States in May 1989, the Treaty on Open Skies represents the broadest international effort to date to promote openness and transparency of military forces and activities. The Treaty covers all the territory of its signatories, which include all NATO Allies, the East European members of the former Warsaw Pact, Russia, Ukraine, Belarus, Georgia, and Kyrgyzstan. Additional states have indicated their interest in becoming parties in the near future.

The Treaty on Open Skies provides the opportunity to conduct flights in unarmed observation aircraft over the entire territory of each State Party and makes available the information, gathered during these flights to all States Parties. It will contribute to mutual understanding and confidence-building by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of concern to them. The Treaty responds to the desire of many states for innovative means of strengthening security and stability, especially throughout Europe, including the states of the former Soviet Union. The basic principles and modalities of Open Skies could be used to contribute to the reduction of tensions in other regions of the world as well.

I urge the Senate to give favorable consideration to the Treaty, including its annexes, and to offer its advice and consent to ratification at an early date.

Sincerely,

Warren Christopher.

The Chairman. Secretary Christopher wrote that the Treaty, quote, "will contribute to mutual understanding and confidence building by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of concern to them. The Treaty responds to the desire of many states for innovative means of strengthening security and stability, especially throughout Europe, including the states of the former Soviet Union."

So, it is with a warm welcome I welcome you here and leave the record open for statements by members.

[The statement of Senator Pressler follows:]

Prepared Statement of Senator Larry Pressler

Mr. Chairman, thank you for holding this hearing today about the Open Skies Treaty. The issues being addressed are important— issues that affect our national security. As the New World Order continues evolving, the application of military technologies should reflect the changing correlation of global forces.

The Open Skies accord is an expansive international endeavor to promote openness and transparency in military activities. It encompasses NATO allies, members of the former Warsaw Pact, as well as Russia, Ukraine, and Belarus. In addition, any of the former Soviet republics can join at any time.

Using unarmed reconnaissance aircraft, nations party to the Open Skies Treaty are allowed to fly over the others to monitor sensitive military build-ups. It offers nations lacking high quality, technologically advanced monitoring equipment a better, opportunity to observe foreign military forces. With the end of the U.S./Soviet superpower rivalry, it will be important to adjust our military goals to a multinational basis. This will involve adjusting the Open Skies Treaty to include those nations that lack the current ability to observe possible threats from neighbors' military facilities.

I look forward to the development of the Open Skies Treaty. Keeping pace—technologically and multilaterally—will be a key facet of U.S. foreign policy in the days ahead. Thank you, Mr. Chairman.

The Chairman. We will start out by hearing the Hon. Robert Gallucci, Assistant Secretary for Politico-Military Affairs, Department of State, Secretary Gallucci.

Statement of Hon. Robert L. Gallucci, Assistant Secretary for Politico-Military Affairs, U.S. Department of State

Mr. Gallucci. Thank you, Mr. Chairman. With your permission, I will read a short statement and provide a longer one in the record.

The Chairman. It will be inserted into the record in full.

Mr. Gallucci. Mr. Chairman, I am honored to have the opportunity to testify before this committee in support of ratification of the Treaty on Open Skies. The Open Skies Treaty is a new and important advance in arms control and confidence and security building. As Secretary Christopher stated in the letter that you quoted of March 4, "The Treaty on Open Skies represents the broadest international effort to date to promote openness and transparency of military forces and activities."

In my brief statement, Mr. Chairman, I would like to outline briefly six broad ways in which the Treaty will contribute to international security and stability.

First, the Treaty offers agreed procedures for all states to gather relevant information about the military activities of other treaty participants. This information can be used by one state to clarify another's activity and thus help avoid miscalculation and misperception that could lead to conflict. By looking at where participating states have negotiated their overflight quotas it is clear where there is interest in a neighboring state's activities. Ukraine, for instance, plans to overfly the former Czech and Slovak Federal Republic, Hungary, Poland, Romania, and Turkey. Greece plans to conduct flights over Romania and Bulgaria, Hungary plans to overfly Romania and Ukraine.

Second, the entire——

The Chairman. Would you repeat those overflights?

Mr. Gallucci. Certainly, sir. Ukraine plans to overfly the former Czech and Slovak Federal Republic, Hungary, Poland, Romania and Turkey. Greece plans to conduct flights over Romania and Bulgaria. Hungary plans to overfly Romania and Ukraine.

Second, the entire national territory or treaty participants will be available to Open Skies observation flights. Under this unprecedented level of openness, Russia and much of the former Soviet Union, for instance, will be accessible as never before. This will go far to increase the confidence of its successor states as well as others concerned about developments there.

Third, all participating state, regardless of size, technological development or national wealth, can gather information of interest to it through unarmed observation flights. Data collected on any observation flight will be available for purchase by all treaty participants- Let me repeat that; I think that is particularly important. Data collected on any observation flight will be available for purchase by all treaty participants. This provision dramatically increases information available to states that do not have national technical means of their own. Information that is available to all can also be discussed by all. This is not true of data collected, for example, by satellite which may not be so widely shared. 

Fourth, the process of interaction and dialogue that will arise out of implementing the Open Skies agreement will itself contribute to longer-term confidence. In addition to the contacts which occur during Open Skies observation flights, the exchanges over implementation questions and the Open Skies Consultative Commission will foster transparency and dialogue.

Fifth, overflights can be used to investigate activities of relevance to other arms control agreements. While other arms control agreements are complete in themselves, Open Skies participating states could use observation flights to look into some aspect of the implementation of these agreements, or to help a state determine where to focus its verification efforts. In specific situations, this type of information may be more readily usable in bilateral and multilateral diplomatic exchanges than would information acquired through national technical means, again, such as satellite photography.

Finally, Open Skies is not limited in its geographical reach. All nations of the world willing to open their whole territory to observation flights are eligible to accede to the Treaty with the consent of the current participants. For instance, therefore, there have been expressions of interest from non-signatories, such as Sweden and Finland, and indications of interest from countries outside CSCE.

Mr. Chairman, in conclusion, I can only echo the words of Secretary Christopher in his letter to you, and I quote. "I urge the Senate to give favorable consideration to the Treaty, including its annexes, and to offer its advice and consent to ratification at an early date." Thank you, Mr. Chairman.

[The prepared statement of Mr. Gallucci follows:]

Prepared Statement of Robert L. Gallucci

Mr. Chairman and members of the Committee: I am honored to have the opportunity to testify before this Committee in support of ratification of the Treaty on Open Skies.

As Secretary Christopher stated in his March 4 letter to Chairman Pell, "the Treaty on Open Skies represents the broadest international effort to date to promote openness and transparency of military forces and activities."

The Open Skies Treaty is a new and exciting advance in arms control. Cast in the form of a treaty in order to ensure legally-binding rigor in its implementation, Open Skies follows in the wake of such landmark agreements as the INF Treaty, START I, and the CFE treaty. But Open Skies does not call for limitation or reduction of armaments. Instead, Open Skies is a confidence-building agreement, in the tradition of many of the measures in Vienna Documents 1990 and 1992, Unlike those agreements, however, Open Skies does not call for an essentially static exchange of prescribed information or a series of exchanges or visits.

The Treaty on Open Skies establishes equitable, agreed procedures under which each participating state—regardless of size, level of technological development, or national wealth—can seek security information of interest to it through unarmed observation flights. These flights are conducted on short notice and, under the Treaty quota system, the observed state has no right to refusal. Open Skies is not limited in its geographical reach: all nations of the world willing to open their entire territory of observation flights are eligible to accede to the Treaty, with the consent of the current participants. Open Skies principles and procedures may also serve a models for similar regional agreements.

The insistence that the entire national territory of treaty participants be available to Open Skies observation flights was a key negotiating goal of the United States. Its codification in the Treaty represents an unprecedented level of transparency and openness and is the heart of the Treaty's ability to strengthen stability.

In addition, as has been the case in implementation of other agreement, the process of interaction and dialogue that will arise out of implementing the Open Skies agreement will contribute to longer-term confidence. In addition to the contacts which occur during Open Skies observation flights, the Treaty establishes the Open Skies Consultative Commission to address questions of implementation. Exchanges there, such as those regarding implementation questions (like overflight quota allocations) in the Open Skies Consultative Commission will foster transparency and dialogue.

In a world where security concerns are increasingly diverse and multipolar, Open Skies decentralizes, diffuses, and demythologizes the capacity to gather security information. This combination of legal obligation, territorial openness and operational flexibility, and emphasis on the different and evolving desires for security information of each individual state is a unique and important contribution to stability in the post-Cold War world.

Ambassador Hawes will testify in more detail about the quota system for Open Skies observation flights. But a brief look at current active quotas—each participating nation's negotiated allocation of overflights of other participants—demonstrates the ability of Open Skies to address regional concerns.

Greece, for instance, plans to conduct flights over Romania and Bulgaria. Hungary plans to overfly Romania and Ukraine. Romania is using its active quota for flights over Greece, Bulgaria, Hungary, and Ukraine. Ukraine plans to overfly Hungary, Poland, Romania and Turkey and the former Czech and Slovak Federal Republic (whose successor states are in the process of reaffirming their participation in Open Skies and adjusting their active and passive quotas). Turkey plans to conduct flights over Belarus-Russia, Bulgaria, and Ukraine. This matrix of overflights indicates a prudent desire by each of these nations to keep track of events "in the neighborhood." Open Skies provides an agreed way to accomplish such a goal.

By the same token, Open Skies has a strategic or non-regional application. The United States and Belarus-Russia have an obligation to accept the same total number of overflights of their territory: 31 annual Flights for the first three years after entry into force and 42 annual flights thereafter. But, in response to their individual perception of their security interests, the participating states thus far have elected to exhaust the Belarus-Russia obligation of 31 annual flights, while seeking just four annual flights over the United States-

Finally, as noted in the preamble of the Open Skies Treaty, overflights can be used "to facilitate the monitoring of compliance with existing or future arms control agreements." These other agreements are complete in themselves and, as appropriate, contain extensive provisions for evaluation or verification r of compliance. But an Open Skies participating state could utilize observation flights to look into some aspect of the implementation of these agreements, or to help it determine where to focus its Verification" efforts under these agreements.

The Open Skies Treaty provides that the data collected on any observation flight shall be available for purchase by all treaty participants, dramatically multiplying the availability of information about those states which are being overflown. This availability of, information also demonstrates the utility of Open Skies data in bilateral and multilateral diplomatic exchanges. Information that is available to all can be discussed by all, an advantage that data from satellite collection does not have.

Thus, the Open Skies Treaty represents an important advance in international cooperation in the security field and responds especially to the new demands of the post-Cold War world; Although initially negotiated between the nations of NATO and the Warsaw Pact, the dissolution of the Warsaw Pact and the Soviet Union during the negotiations added a new dimension and a new relevance, to the agreement. For this reason, Open Skies successfully addresses the desires of nations caught up in the transformation and nation-building in Europe today.

The principal benefit to the United States of the Open Skies Treaty will be the Treaty's promotion of an increased sense of security and stability among the signatories. The territory of the former Soviet Union, for instance, will be accessible as never before, which will help increase the confidence of its successor states as well as that of others concerned about development there. In addition, although national technical means will remain the most cost-effective way to collect information on a routine basis, Open Skies may provide information of use in specific situations and will certainly provide information more readily usable in bilateral and multilateral diplomatic exchanges. This increased access to meaningful and usable information will contribute to early clarification of situations before they can evolve into more serious problems.

Mr. Chairman, in conclusion, I can only echo the words of Secretary Christopher in his letter to you: "I urge the Seriate to give favorable consideration to the Treaty, including its annexes, and to offer its advice and consent to ratification at an early date."

The Chairman. Thank you very much. And we particularly note that you are the only confirmed Bush administration official at your level to be retained, that you for carrying on.

Mr. Gallucci. Thank you, Mr. Chairman.

The Chairman. We will now turn to Mr. Graham, an old friend of the committee, and the Acting Director of the ACDA at that time.

Statement of Thomas Graham, Jr., Acting Director and General Counsel, Arms Control and Disarmament Agency

Mr. Graham. Thank you, Mr. Chairman. With your permission, I will read portions of my statement and submit the complete statement for the record.

The Chairman. Your full statement will be inserted in the record.

Mr. Graham. I appreciate your invitation to testify before the Committee on Foreign Relations in support of the Senate giving its advice and consent to ratification of the Treaty on Open Skies. The Treaty on Open Skies will contribute to international security and stability in general, and will assist in the development of a cooperative security environment in Europe, also contributing thereby to American security.

Mr. Chairman, the rights and obligations of the Treaty on Open Skies support United States and Alliance security and arms control objectives.

In pursuing the objectives of enhanced security and stability we seek measures—such as the Treaty on Open Skies—designed to build mutual confidence and to reduce the risk of conflict by promoting greater transparency and predictability in military matters. By strengthening the environment of security and confidence, such measures increase the ability of our new partners in Europe to fulfill their commitments as participants in the Conference on Security and Cooperation in Europe—CSCE—and to ensure that democratic change is irrevocable. They also facilitate farther security cooperation within a more stable and predictable international environment.

Building confidence is the principal role of the Treaty on Open Skies, the most wide-ranging international effort to date to promote openness with regard to military forces and activities. The Treaty accomplishes this broad objective by giving all participating countries, regardless of size, a direct role in gathering information about military forces and activities of concern to them. In Europe, it meets the desire of many countries to be directly involved in multilateral security undertakings now that the bipolar division of the continent has ended.

Mr. Chairman, I understand that two questions have been raised about the treaty relating to the use of an observed party's aircraft as an observation aircraft under the treaty. In this connection, I wish to make two statements for the record. First, Article XII of the Open Skies Treaty does not modify existing international law on liability for injury or damage that may occur as a result of flights conducted under the Treaty. It does not impose liability on the observing party to pay compensation for injury or damage to an observed party, or to its natural or juridical persons or to their property, caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty, if such observation flight was conducted using an observation aircraft designated and provided by the observed party under Article VI of the Treaty.

Further, the United States will seek compensation from the observed party in any case in which injury or damage to the United States, including but not limited to any of its flight representatives, representatives, sensor operators and inspectors, is caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty, and if such observation flight was conducted using an observation aircraft designated and provided by the observed party pursuant to Article VI of the Treaty. The U.S. interpretation with respect to Article XII will be formally communicated to all States Parties to the Open Skies Treaty within the framework of the Open Skies Consultative Commission.

Second, for purposes of certification in order to receive assistance under the Nunn-Lugar Act and the Freedom Support Act, the Open Skies Treaty is considered to be an arms control agreement.

In conclusion, Mr. Chairman, I believe that the Treaty on Open Skies will contribute to predictability and stability in the new European and global security environment. :

Mr. Chairman, the Open Skies concept, originally introduced in 1955 by President Eisenhower, was re-introduced in 1989 by the United States, and it was U.S. leadership that brought the Treat/a negotiations to a successful conclusion, it will take continued U.S. leadership to bring about the Senate to give its advice and consent to ratification of the Treaty on Open Skies.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Graham follows:] ,

Prepared Statement of Thomas Graham, Jr., Acting Director,

U.S. Arms Control and Disarmament Agency

Mr. Chairman: I appreciate your invitation to testify before the Committee on Foreign Relations in support of the Senate giving its advice and consent to ratification of the Treaty on Open Skies. The Treaty on Open Skies will contribute to international security and stability in general, and will assist in the development of a cooperative security environment in Europe, also contributing thereby to American security.

Mr. Chairman, the rights and obligations of the Treaty on Open Skies support U.S. and Alliance security and arms control objectives.

In pursuing the objectives of enhanced security and stability, we seek measures—such as the Treaty on Open Skies—designed to build mutual confidence and to reduce the risk of conflict by promoting greater transparency and predictability in military matters. By strengthening the environment of security and confidence, such measures increase the ability of our new partners in Europe to fulfill their commitments as participants in the Conference, on Security and Cooperation in Europe (CSCE) and to ensure that democratic change is irrevocable. They also facilitate further security cooperation within a more stable and predictable international environment.

Building confidence is the principal role of the Treaty  on Open Skies, the most wide-ranging international effort to date to promote openness with regard to military forces and activities. The Treaty accomplishes this broad objective by. giving all participating countries, regardless of size, a direct role in gathering information about military forces and activities of concern to them. In Europe, it meets the desire of many countries to be directly involved in multilateral security undertakings now that the bipolar division of the continent has ended.

Given the dynamic aspects of the process of negotiating openness, the principles and results embodied in one agreement may facilitate other steps. For example, the Treaty on Open Skies promotes transparency and stability by establishing another mechanism that makes it more difficult for participating states to conceal from each other preparations for surprise attack and large-scale offensive action. This result also serves the principal objective of the CFE Treaty. The CFE Treaty achieves this objective by regulating the amount and disposition of weapons; the Treaty on Open Skies by providing a bird's eye view of military forces and activities.

More generally, the existing European conventional arms control and confidence- and security-building agreements, all to be supplemented with the work of the CSCE's Forum for Security Cooperation (FSC), are mutually reinforcing. Effective implementation of the Treaty on Open Skies will be greatly assisted by the unprecedented amounts of information on forces and activities that will be provided by participating countries through the information exchange, on-site inspection, observation and evaluation provisions of the other agreements. Open Skies flights will then help inform the States Parties as to whether the security situation is remaining stable, and whether potentially threatening military activities are being carried out.

The Treaty on Open Skies also supports wider security objectives when it notes the possibility of employing the regime to facilitate the monitoring of compliance with existing or future arms control agreements. The Treaty provides the self-evident benefit of allowing States Parties to supplement their observations made during on-site inspections and from other means.

Mr. Chairman, an important aspect of the Treaty on Open Skies is ifs flexibility, both in terms of enlarging its membership and expanding its mandate. The transformation of the security situation in Europe during the period when this Treaty was negotiated permitted a significant shift in the principal focus of the Treaty. The Open Skies initiative, which reformulated President Eisenhower’s original Open Skies proposal of 1955, was originally intended in part as a measure of the willingness of the former Soviet Union, and of its Warsaw Pact allies, to move beyond the policies of the Cold War and to apply glasnost to military matters.

However, the provisions of the Treaty on Open Skies are sufficiently flexible so as to be able to foster the broader goals of transparency and openness. The Treaty potentially can be used as a confidence-building tool that we hope might contribute to preventing or deterring localized conflict situations from escalating through misunderstanding. Six months after the Treaty enters into force, it will be open to application for participation by any interested state, subject to OSCC consensus, thereby providing the potential for its worldwide application. The concepts embodied in the Treaty also may be usefully adapted to particular regional circumstances in other parts of the world,

The Treaty permits the addition of new provisions that may be necessary to improve the effectiveness of the regime, by agreement of the States Parties. Further, the Treaty allows for consensus decisions to upgrade sensors and adjust quotas to enhance the effectiveness of the evolving Open Skies regime.

Mr. Chairman, I understand that two questions have been raised about the Treaty relating to the use of an observed Party's aircraft as an observation aircraft under the Treaty. In this connection, I wish to make two statements for the record.

First, Article XII of the Open Skies Treaty does not modify existing international law on liability for injury or damage that may occur as a result of flights conducted under this Treaty. It does not impose liability on the observing Party to pay compensation for injury or damage to an observed Party, or to its natural or juridical persons or to their property, caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty, if such observation flight was conducted using an observation aircraft designated and provided by the observed Party under Article VI of the Treaty.

Further, the United States will seek compensation from. the observed Party in any case in which injury or damage to the United States, including but not limited to any of its flight representatives, representatives, sensor operators and inspectors, is caused by the operation of the observation aircraft during an observation flight in the course of implementation of the Open Skies Treaty and if such observation flight was conducted using an observation aircraft designated and provided by the observed Party pursuant to Article VI of the Treaty. This U.S. interpretation with respect to Article XII will be formally communicated to all States Parties to the Open Skies Treaty within the framework of the Open Skies Consultative Commission.

Second, for purposes of certification in order to receive assistance under the Nunn-Lugar Act and the Freedom Support Act, the Open Skies Treaty is considered to be an arms control agreement.

In conclusion, Mr. Chairman, I believe that the Treaty .on. Open Skies will contribute to predictability and stability in the hew ,European and global security environment. Thus. it will serve as an exemplar for facilitating openness and for using the observation techniques it contains to reduce regional tensions and to Help prevent conflict in other areas of the world.

Mr. Chairman, the Open Skies concept, originally introduced in 1955 by President Eisenhower, was re-introduced in 1989 by the United States, and it was U.S. leadership that brought the Treat/s negotiations to a successful conclusion. It will take continued U.S. leadership to bring about the fulfillment of the Treaty's objectives. I therefore urge the Senate to give its advice and consent to ratification of the Treaty on Open Skies.

Thank you Mr. Chairman.

The Chairman. Thank you, Mr. Graham.

I would, without objection, insert in the record the letter from Secretary Christopher to me dated March 4 of this year, and have it inserted at the place in my opening statement where I referred to it.

Our next witness will be the Hon. John Hawes, U.S. Representative to the Open Skies Conference, from the Department of State.

Statement of Hon. John Hawes, U.S. Representative to the Open Skies Conference, U.S. Department of State

Mr. Hawes. Thank you, Mr. Chairman. I, too, have submitted a longer statement for the record. I would propose to read short excerpts from that.

As Secretary Christopher indicated in his letter of March 4, the Treaty '"will contribute to mutual understanding and confidence building by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of interest to them."

I believe that the Treaty on Open Skies will contribute to international security in the post-Cold War world in four significant ways. First, by empowering all of the signatory states, as Secretary Christopher indicated, to collect relevant security information it will greatly increase their ability to play responsible roles in the newer, more flexible, more multilateral world which we now face.

Second, the Treaty nails down the principle of full territorial openness. All of the territory of all of the participants must be open to observation. This was the sine qua non of an agreement as determined by the United States when we first laid our objectives. It was something we determined we could accept for ourselves, and we insisted upon it from the former Soviet Union. Third, the Treaty dramatically advances the tools available for confidence building. It provides to all of the participants not only a means of gathering information but the tools to handle the data and to share it with others.

Fourth, the Treaty itself is a major precedent which may prove particularly useful in other parts of the world beyond the original signatories in reducing tensions, contributing to greater mutual understanding, and reinforcing regional peace and security.

I could say a few things about the specific elements of the Treaty but I wanted to comment briefly on the sensor package, which determines, obviously, what particular information may be gathered by participants.

For the United States, which has employed National Technical Means for many years, the sensors which have been agreed upon for use in Open Skies will not provide a significant new source of information. For most other participants, however, the ability to utilize Open Skies sensors to observe the full territory of the other participating countries will represent a new and very significant enhancement in their ability to gather security-related information. The United States, however, will be a major indirect beneficiary of this increase in knowledge, confidence and security of other participants. This, in fact, was one of the primary considerations behind the United States' initiative in presenting the Open Skies idea and bringing the negotiations to a successful conclusion.

One other specific element of the Treaty I thought I should comment on is the quota system. Observation under Open Skies will not be subject to refusal. All parties to the Treaty are assigned "passive quotas" which specify the number of flights they must accept from other participants in a year. At the same time, parties are also assigned "active quotas" specifying how many observation flights they may undertake and which countries they may observe. This mechanism is designed to minimize controversy, to guarantee observation, to avoid any of the hang-ups you may have with a system of having to justify an overflight.

There are many other details in the Treaty, One other I thought I should comment on is the arrangement for aircraft. The Open Skies Treaty provides that any party may designate one or more aircraft for use in Open Skies. It provides further that the aircraft may be either of the observing party or the observed party. The U.S. and most of the other participants in the talks would have preferred that only aircraft of the observing party be used. The former Soviet Union, however, insisted on the right to provide the aircraft for observation of its own territory.

Because the Treaty contains options for aircraft provided by either the observing or the observed party, the Treaty also contains extensive measures to ensure that the capabilities of the aircraft utilized and the sensor equipment mounted on them meet specified treaty standards. These measures include procedures for initial certification of aircraft and sensors, provisions for inspection of aircraft and sensors prior to observation flights, provisions for demonstration flights over test targets, provisions for presence and rights of personnel on both the observing and observed parties onboard the aircraft during an observing flight, and provisions for the sharing of raw data collected during the mght.

Mr. Chairman, we believe the Open Skies Treaty will provide an important tool for enhancing international security in the new circumstances we now face. The Treaty will promote United States' interest in greater international security and in the ability of many more states to assume active and responsible roles in maintaining that security. For these reasons, I urge the Senate to give the Open Skies Treaty early and favorable consideration- Thank you.

[The prepared statement of Mr. Hawes follows:]

Prepared Statement of Ambassador John H. Hawes

Mr. Chairman, I am honored to testify before this Committee in support of the Open Skies Treaty.

As Secretary Christopher indicated in his letter of March 4, the Treaty "will contribute to mutual understanding and confidence building by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of interest to them."

This Treaty has been made possible by the dramatic political changes of the last several years. When former President Eisenhower first proposed cooperative aerial observation, in 1955, the idea was summarily rejected by the Soviet Union. Indeed, it was only after the abortive coup in Moscow in August, 1991, that an agreement could be negotiated embodying the values of Openness and cooperative international observation.

In my remarks I will briefly describe the content and operation of the Treaty. Before doing so, let me put that in context by noting the four essential ways in which the Treaty on Open Skies will contribute to international security in the post-Cold War world.

First, the Treaty empowers all signatory states, regardless of size, wealth, or level of technology, to acquire meaningful security information on neighboring countries. This will enhance the confidence of all participants, and enable them to play more responsible roles in maintaining regional and international security. In this regard, moreover, by generating information which can be easily shared and discussed among participants, the Open Skies Treaty will avoid the difficulties often encountered in working with the necessarily restricted information derived from National Technical Means.

Second, the Treaty nails down the key principle of full territorial openness. All the territory of all the participants will be open to observation, including specifically all the territory of states which formerly restricted large portions of their territory on grounds of national security. The United States insisted on full openness during the negotiations, as a sine qua non for an effective confidence building regime. The U.S. determined at the outset, moreover, that such an unprecedented degree of openness would not pose an unmanageable security risk within the United States itself.

Third, the Treaty dramatically advances the tools available for confidence building. Over the past two decades the array of confidence building measures has expanded steadily. Now, the Open Skies Treaty adds to this tool kit detailed procedures for aerial observation, with agreed sensors, pre-determined quotas, and no right of refusal. It also establishes a new framework for contacts, cooperation, and consultation among participating states.

Fourth, the Treaty establishes a major precedent, which may prove particularly useful in other parts of the world, beyond the original signatories, in reducing tensions, contributing to greater mutual understanding, and reinforcing regional peace and security, Other nations outside the Euro-Atlantic area, where the Treaty was negotiated, have already expressed interest in the Treaty.

Mr. Chairman, I would like to describe the principal provisions of the Open Skies Treaty, relating to participation, coverage, sensors, quotas, aircraft, data, and costs.

PARTICIPATION

The Open Skies Treaty was negotiated between the members of NATO and members of the former Warsaw Pact- The latter organization dissolved during the course of the talks. Original signatories include all 16 NATO states, the East European members of the former Warsaw Pact, and five of the successor states of the former Soviet Union: Belarus, Georgia. Kyrgyzstan, Russia, and Ukraine. Since signature of the Treaty on March 24, 1992, the former Czech and Slovak Republic has divided into two separate states; both are in the process of re-affirming their participation in the Treaty,

The Treaty is now open to signature by all seven other successor states of the former Soviet Union. Following entry-into-force the Treaty will be open to requests for accession by all states participating in the Conference on Security and Cooperation in Europe (CSCE). The Treaty and the Open Skies concept are not, however, confined to Europe. Beginning six months after entry-into-force, any state, without regard to geographical limitations, can accede to the Open Skies Treaty, provided that it will contribute to the objectives of the Treaty and has the consensus approval of the Open Skies Consultative Commission.

COVERAGE

The Open Skies Treaty provides that all of the territory of participating states must be open to observation. No exceptions are permitted for "national security" purposes. Observation flights will follow routes set by the observing party; only modifications for legitimate reasons of flight safety may be proposed.

The question of full territorial access was debated within the U.S. government when the initial Open Skies proposal was developed. At that time a decision was made that full access was essential to the political and confidence-building objectives of the proposal, and that such access could be provided in the U.S., consistent with national security. Given the previous restrictions in force in the former Soviet Union, this requirement for full territorial access was perhaps the subject most intensely debated in the negotiation. Agreement was only reached in the fall of 1991, following the abortive Moscow coup of August, 1991.

The Treaty text not only affirms the principle of full territorial access, but also spells out how this is to be implemented effectively in actual aerial operations. The Treaty does this with detailed provisions on the formulation of the flight plan, to ensure that the observation objectives of the observing party will be achieved.

SENSORS

Once the question of access was determined, the second factor shaping the quality and quantity of information which the participants could gather in Open Skies was the package of sensors to be employed.

For the United States, which has employed National Technical Means for years, the sensors which have been agreed for use in Open Skies will not provide a significant new source of information. For most other participants, however, the ability to utilize the Open Skies sensor suite to observe the full territory of the other participating countries will represent a new and very significant enhancement in their ability to gather security-related information. The United States will, however, be a major indirect beneficiary of this increase in knowledge, confidence, and security of the other participants. This, in fact, was one of the primary considerations behind the United States' initiative in presenting the Open Skies idea and bringing the negotiations to a successful conclusion.

All parties in Open Skies will have access to sensors of equal capabilities. In the spring of 1990 the East European states obtained agreement from the U.S. and its NATO allies that all participants would have access to sensor capabilities equal to those employed by any other participant. The East European governments no longer could, nor wished to, depend on the Soviet Union for sensor support. At the same time, they recognized that most Western sensors were still subject to technology transfer controls. This right of equal access is specified in the Treaty, and was one of the first points of agreement in the negotiations. One result of this .agreement was that the U.S. and its NATO allies had to ensure that any sensor capability which we wished to use in Open Skies could be made available to all other participants. In practice, that imposed a ceiling on the sensors which we and our NATO allies were prepared to employ under the Treaty.

Initially, the United States and its NATO allies proposed that there be no limits on sensor categories or capabilities, except for a ban on collectors of signals intelligence. The then Soviet Union refused to consider so broad an approach. In the spring of 1991, the U.S. and its NATO allies proposed that Open Skies sensors include optical and electro-optical cameras, synthetic aperture radar, infrared line-scanning systems, air sampling systems, and multispectral systems (although NATO agreed that the last two systems would have a lower priority). Agreement was reached in the Treaty on the inclusion of panoramic and framing optical cameras, video cameras, synthetic aperture radar, and infra-red line scanning systems. Air sampling systems and multispectral systems were not accepted. Additional sensor systems can be agreed by consensus of the Open Skies Consultative Commission.

In determining sensor specifications, the U.S. and its allies worked from the postulate that Open Skies optical imagery should permit analysis to recognize armored vehicles, i.e. to distinguish a tank from a truck, an objective which was eventually accepted by all participants. This recognition could be achieved with a ground resolution of 30 centimeters (60 cm. Ground Resolved Distance). This standard would enable Open Skies to contribute meaningfully to confidence building, as well as supplement arms control verification regimes. Many of the European states, for example, believed that the ability to observe armored vehicles would be a useful supplement to the verification provisions of the CFE Treaty, inter alia because Open Skies flights could reach the former Soviet Union east of the Urals, outside the CFE zone of application.

At the same time, this imagery standard would not permit the collection of technical intelligence—e.g. on models of tanks and their equipment—and thus would not trigger security concerns in participating countries. This limitation was important to the military representatives of the former Soviet Union. Even though they recognized that the U.S. could acquire higher quality imagery with its unilateral National Technical Means, they were reluctant to permit diffusion of such higher-quality imagery on a multilateral basis to all the participants in the Treaty. This may have reflected not only tactical military concerns, but also essentially political concerns about the implications of greater openness. The tank-recognition standard also served to minimize certain counter-intelligence and anti-terrorist concerns in the West.

The standard for video cameras is the same as that for optical cameras, i.e. 30 centimeters ground resolution. In practice, it is believed that the most potential value will come from optical imagery and that the altitude from which the optical cameras will operate may preclude the collection of quality imagery by video cameras most of the time.

The standard for synthetic aperture radar was set at 3 meters ground resolution, which allows recognition of the presence of very large equipment or buildings but is not sufficient for recognition of individual pieces of equipment. This level was primarily determined by U.S. concerns that systems with a better resolution would pose unacceptable technology transfer problems. The Soviet Union had initially not wanted any synthetic aperture radar. In April 1990, it moved to accept SAR in principle, but at a ground resolution capacity of 10 meters. In the fall of 1991 it accepted inclusion of SAR at 3 meters ground resolution.

The standard for infra-red line scanning devices was set at 50 centimeters ground resolution. The U.S. and its NATO allies would have preferred to use the same standard for infra-red as for optical imagery. The Soviet Union resisted this, arguing that infra-red imagery of that quality would provide an observer with tactical information which could be useful in attack planning, thereby going beyond the confidence-building purposes of the regime. For this reason, the Soviet Union had initially objected to the inclusion of any infra-red systems. Even when it ultimately agreed to the inclusion of an infra-red system with a 50 centimeter ground resolution, it insisted that it only be used after the initial three years of implementation of the Treaty.

QUOTAS

Observation under Open Skies will not be subject to refusal. All parties to the Treaty are assigned "passive quotas," specifying the number of flights they must accept from other participants in a year. Further, parties are assigned "active quotas," specifying how many observation flights they may undertake and which countries they may observe. The determination of the passive and active quotas of the participants was a sensitive subject in the negotiations.

Under the Open Skies Treaty, the U.S. will have a "passive quota" of 42 flights annually; i.e., it will be obligated to accept up to 42 flights from other participating states, if requested, the U.S. originally said it could accept 52 flights annually, or one flight per week. That number was lowered in the course of the negotiations, so that the U.S. number would not exceed the number for Belarus/Russia, also 42.

For the first three years after entry into force, countries will only have to accept up to seventy five percent of their passive quotas, meaning that the initial U.S. passive obligation is 31. For the first year of the Treaty's operation, only 4 of these 31 potential flights over the U.S. were requested, all by Belarus-Russia, which are operating as a "group of states parties" under the provisions of the Treaty. As a group, Belarus-Russia will have a joint quota and will conduct observation flights jointly and receive flights jointly, which may go to any portion of their combined territory. No other participating state expressed interest in observing the U.S.

The Treaty provides that a country's active quota, i.e., the number of observation flights it may conduct, may equal but not exceed^ its passive quota. Thus, the ceiling for the U.S. active quota in the' initial period would be 31. The initial negotiated distribution of the "active quota" of the U.S. provides for 9 flights: 8 flights over the Belarus-Russia groups of parties, and one flight over Ukraine, the latter to be shared with Canada, The U.S. would have preferred to utilize more of its potential allocation of active quotas, particularly in Eastern Europe and the nations of the former Soviet Union. But the passive quotas of Russia and all the countries in the former Warsaw Pact were oversubscribed.

Belarus-Russia provides a good example. The "passive quota" for Belarus-Russia (as a group) is 42, equal to that of the U.S. For the initial three years, this works out to a passive quota of 31, or 75 per cent of the full quota. This passive quota of 31 for Belarus-Russia is fully subscribed. In addition to the 8 flights allocated to the U.S., the Belarus-Russia quota was exhausted as follows: Germany (3), France (3), the United Kingdom (3), Canada (2), Italy (2), Norway (2), and Turkey (2), the three Benelux states, acting as a combined party (1), Denmark (1) and Poland (1). In addition, although Finland and Sweden are not initial signatories to the Treaty, one quota over Belarus-Russia was set aside for Finland, and two for Sweden in anticipation of their early accession to the Treaty and in recognition of their direct security concerns and the contribution they made to the success of negotiations.

All 31 of the available passive quotas over the Belarus-Russia group of parties are allocated, while only 4 passive quotas are allocated over the U.S. As a result, Belarus-Russia will be subjected to significantly more observation than the U.S., even though the nominal passive quotas are identical. Further, because of the Treaty's data sharing provisions, the U.S, or any other participating state will be able to obtain the data from observation flights there.

The U.S. and Belarus-Russia have by far the largest passive quotas in Open Skies. Canada, Germany, France, Italy, Turkey, Ukraine and U.K. each have quotas of 12. Portugal has the lowest 2.

The distribution of active quotas, i.e. the rights to conduct observation flights over individual participating countries or groups of countries, will be subject to annual redistribution in the Open Skies Consultative Commission on the basis of consensus. Absent consensus for change, the previous year's distribution will continue in effect.

AIRCRAFT

The Open Skies Treaty provides that any party may designate one or more aircraft for use in Open Skies. It provides, further, that either aircraft of the observing party or the observed party may be used on observation flights. The U.S., and most of the other participants in the talks, would have preferred that only aircraft of the observing party be used. The former Soviet Union, however, insisted on the right to provide the aircraft for observation of its own territory.

Because the Treaty contains options for aircraft provided by either the observing or observed party, the Treaty also contains extensive measures to ensure that the capabilities of the aircraft utilized, and the sensor equipment mounted on them, meet specified Treaty standards. These measures include procedures for initial certification of aircraft and sensors; provisions for inspection of aircraft and sensors prior to observation flights; provisions for demonstration flights over test targets; provisions for the presence and rights of personnel of both the observing and observed parties on board the aircraft during an observation flight; and provisions for the sharing of the raw data gathered on an observation flight between the observing and observed parties.

DATA SHARING

The NATO "Basic Elements" paper of December, 1989, stated that "members of the same alliance will determine among themselves how information acquired through Open Skies is to be shared." This provision was based on U.S. concerns that data collected by the U.S. or its allies under Open Skies should not be shared with the Warsaw Pact countries, since it might enable them to better assess their vulnerability to observation and thereby to improve their cover, concealment and deception techniques.

The dissolution of the Warsaw Pact left the countries in Central and Eastern Europe without a formal security structure within which data might be shared and at the same time radically reoriented their security concerns. As a result, they then. argued strongly for broader sharing of Open Skies raw data, especially regarding their primary subject of concern, Russia. In addition, the decision that the categories and specifications of the Open Skies sensors would be precisely defined in the Treaty made it possible for countries to calculate their vulnerability to observation, regardless of data sharing. This reinforced further the argument for the widest possible sharing of raw data.

As a result, under the Open Skies Treaty, all participant states can purchase the raw overflight data produced by any participating state's flight over any other. This wide access to raw data will greatly multiply the value of the regime to individual participating countries, enabling them to compile data well beyond that which they could acquire with their own observation flights.

OPERATIONAL COSTS

Basic agreement on the allocation of costs was reached in the first session of the Open Skies Consultative Commission in the spring of 1992. This agreement was formally adopted, however, in the second session of the Open Skies Consultative Commission in the fall of 1992, when agreement was also reached on the waiver of fees for navigation aids and air traffic control services.

The cost allocation agreements clarify the responsibilities of the observing and observed parties in various scenarios, thereby minimizing the potential for future disagreement or unexpected financial burdens. These agreements deal with payment for goods and services related to the observation aircraft and specify that the prices for the above items shall be set at the lowest commercially available rate at the airport in Cologne, Germany. The cost agreement also deals with the costs of recording media and processing that media, as well as a number of other detailed subjects such as the allocation of costs for the certification of aircraft, demonstration flights, and deviations or curtailments of flights.

CONCLUSION

Mr. Chairman, the Open Skies Treaty will provide an important tool for enhancing international security in the new circumstances of the post-Cold War world. It will increase the ability of all participating states, regardless of size and wealth, to seek and exchange meaningful security information through a regime of unartned observation flights, according to internationally agreed and legally-binding procedures. It establishes a regime of unprecedented transparency and openness, which will contribute to mutual understanding of military forces and activities. In addition to reducing tensions, Open Skies will enhance the ability of many of the participating states to monitor arms control agreements. Overall, tile Treaty will promote the United States' interest in greater international security and in the ability of many more states to assume active and responsible roles in maintaining that security. For these reasons, I urge the Senate to give the Open Skies Treaty early and favorable consideration.

The Chairman. Thank you very much, indeed, Mr. Hawes.

We now come to Mr. William Inglee, Acting Assistant Secretary for International Security Policy from the DOD. Mr. Inglee.

Statement of William Inglee, Acting Assistant Secretary for International Security Policy , U.S. Department of Defense

Mr. inglee. Mr. Chairman, like my colleagues, I will insert my full testimony in the record and make short comments now, if that is acceptable to you.

Mr. Chairman, I, too, am very honored to be here today before the Committee in support of the Treaty on Open Skies. This is a precedent-setting agreement that I believe will be of substantial benefit for the United States, for Europe, and for the states of the former Soviet Union.

The Treaty on Open Skies is the successful culmination of a United States effort to open up the entire territory of Russia and other former Soviet republics to unarmed aerial observation flights. It was conceived in May of 1989 as a means to enhance stability and build confidence in the peaceful intentions of participating nations.

The Treaty will significantly augment the degree of openness and military transparency among States Parties which include Russia as well as other key successor states to the former Soviet Union. While we in the West welcome the notion of openness and transparency, until this treaty, access to the skies of the former Soviet Union was circumscribed or wholly prohibited.

Mr. Chairman, the Department of Defense will play a critical role in implementing the Open Skies Treaty, and we expect to provide one aircraft, a modified WC--135B, equipped with appropriate sensors, by June 30 of this year. Additionally, the On-Site Inspection Agency is moving forward in its plans to implement the Treaty in all of its aspects.

Mr. Chairman, I will conclude my remarks by saying that the Office of the Secretary of Defense fully supports timely ratification of the Treaty on Open Skies and looks forward to playing a critical role in its implementation. Thank you very much-

[The prepared statement of Mr. Inglee follows:]

Prepared Statement of William B. Inglee

Mr. Chairman, I am honored to appear today before this committee in support of the Treaty on Open Skies. This is a precedent-setting agreement that I believe will be of substantial benefit for the United States, for Europe, and for the states of the former Soviet Union.

The Treaty on Open Skies is the successful culmination of a United States effort to open up the entire territory of Russia and other former Soviet republics to unarmed aerial observation flights. It was conceived in May 1989 as a means to enhance stability and build confidence in the peaceful intentions of participating nations. The treaty will significantly augment the degree of openness and military transparency among States Parties, which include Russia, as well as other key successor states to the former Soviet Union. While we in the west welcome the notion of openness and transparency, until this treaty, access to the skies of the former Soviet Union was circumscribed or wholly prohibited.

The treaty gives each state party the right to conduct short notice observation flights anywhere within the territory of each of the other States Parties, with no right of refusal. This arrangement will allow flights by our NATO allies and others that, collectively, will greatly exceed the number of observations that we ourselves can conduct. Moreover, the data collected during any observation flight will be available to all States Parties, regardless of which state party actually conducted the flight. This represents an unprecedented degree of guaranteed access to heretofore restricted areas. We believe that such access has intrinsic political value.

The treaty provides more than just political benefits. We expect to receive militarily useful information from open skies overflights of both the United States and other states parties. The suite of optical, video, infrared, and synthetic aperture radar sensors carried on an open skies aircraft will enable observing States Parties to recognize major military equipment—for example, to distinguish a tank from a truck—and, thereby, contribute to their ability to assess the location and strength of military forces. But the overriding value of this treaty lies in the willingness of Russia—for the first time in history—to open the entirety of its territory to observation by other States Parties. It is this change in mindset, as much as the multilateral transparency that will follow open skies implementation, that makes the treaty a unique and valuable investment for the Department of Defense.

At the same time, it should be recognized that open skies is by no means a panacea. It is not an arms control agreement in the traditional sense. It neither limits nor reduces military capabilities nor is it tied to any specific arms control agreement; observation flights are not inspections; the sensor suite is not a spy package; and neither the flight rules nor the distribution of flights among the states parties will substitute for other arms control measures like short-notice observation of military exercises. The thrust of the Open Skies Treaty is to enhance security and confidence through openness and transparency, not to control military activities or capabilities.

The Department of Defense continues to play a critical role in implementing the Open Skies Treaty. We expect to provide one aircraft (a modified WC-135B) equipped with appropriate sensors by June 30, 1993. Additionally, the on-site inspection agency (OSIA) is moving forward in its plans to implement the treaty. OSIA’s implementation responsibilities include leadership, training, and management of open skies observation missions, including observation teams, escort teams, and linguists. OSIA coordinates its efforts with other appropriate government agencies as necessary in order to ensure successful implementation of the treaty, including those agencies providing counterintelligence support to this effort. In terms of current plans, flight crews have begun open skies flying activities with a training aircraft; and, we are in the process of creating a notification system which will safeguard national assets during observation flights over the United States.

In short, the office of the Secretary of Defense fully supports timely ratification of the treaty on open skies, and looks forward to playing a critical role in its implementation. Thank you, Mr. Chairman.

The Chairman. Thank you very much, Mr. Inglee.

We now turn to Brig. Gen. Teddy Rinebarger, Assistant Deputy Director of International Negotiations, from the Joint Staff.

Statement of Brig. Gen. Teddy E. Rinebarger, USAF, Assistant Deputy Director for International Negotiations, the Joint Staff.

General Rinebarger. Good afternoon, Mr. Chairman, Senators Lugar and Coverdell, I appreciate the opportunity to appear before you once again to express the Joint Staffs support for ratification of the Treaty on Open Skies. My previous written testimony that I provided this committee on the 22nd of September continues to reflect our view of the Treaty from a military perspective.

As a political symbol, the Open Skies Treaty demonstrates to our European allies that, despite reductions in our forward military presence, we remain committed to their security interests and that we will continue to work to help promote their security interests, not just our own.

United States' willingness to open up its territory to aerial observation also sends a strong signal that we are committed to the concept of transparency. While some might express concern about the possible loss of sensitive information through overflights of the United States, our review of the Treaty leads us to conclude that the risks are manageable. We do not believe that military facilities will be placed at risk by Open Skies overflights. In addition to treaty limitations on sensor capabilities and mission operating procedures, a comprehensive notification system will be used to ensure that all military facilities which require advance notice of overflights will be given sufficient time to take precautions.

There are military benefits derived form the Treaty. Through openness and transparency, some of the uncertainties that could lead to military confrontations will be reduced. The military-to-military contacts resulting from Open Skies activities will also contribute to a better mutual understanding. We further feel that this will enhance efforts to promote professionalism and democratic values in the militaries of the east European countries and of the newly independent states,

I believe it is important to note that the provisions of the Treaty were written to allow participation in the Open Skies regime at various levels. This flexibility allows each state to choose its own desired national level of participation, thus controlling some of the costs associated with implementing the Treaty.

In summary, Mr. Chairman, the Treaty on Open Skies can make a positive contribution towards reducing uncertainty and enhancing stability in an area of critical interest to the United States. The Joint Staff, therefore, supports ratification of the Treaty on Open Skies. Thank you, sir.

[The prepared statement of General Rinebarger follows:]

Prepared Statement of Brig. Gen. Teddy E. Rinebarger

Mr. Chairman and members of the Committee: I appreciate the opportunity to appear before you today as the Joint Staff representative to testify in support of prompt ratification of the Treaty on Open Skies.

In March 1989, President Bush proposed this important initiative as an effort to promote security and stability, during a time of high East-West tensions. However, the Treaty on Open Skies was finally concluded in a new era which promises ever increasing cooperation between former adversaries. It is in this dramatically changed context that I would like to briefly address some of the benefits of the Open Skies regime from the military perspective. These benefits accrue from the Treaty’s role as both a political symbol and a practical military measure.

As a political symbol, the Open Skies negotiations involved active leadership on the part of the United States in Grafting an innovative Treaty architecture and demonstrated to our European allies, that despite reductions in our forward military presence, we remain committed to their security interests. Since some European states may have had greater national interests in concluding an Open Skies arrangement than we, the negotiations permitted the United States a unique opportunity to demonstrate to our European partners that we were actively working to promote their security interests. As a result, the Open Skies regime will provide many of our European allies with their first national means to observe the military equipment and facilities within the territory of the former Soviet Union, and especially on the eastern side of the Ural mountains.

During a period in which the United States actively pressed its European partners to shoulder a greater portion of the collective defense burden, the willingness of the United States to open up its territory to aerial observation flights sent a strong signal to the Europeans that we too were willing to share the burden in building confidence and security in the years ahead. While some might express concern about opening up all U.S. territory to overflight by observation aircraft carrying a substantial sensor suite, the scope of the Open Skies regime was carefully considered, and mechanisms are being established to provide adequate notification of impending overflight of any sensitive sites.

While the political benefits of the Treaty are perhaps the most important, a number of significant military benefits will also accrue from this agreement. The Treaty on Open Skies codifies an historic opening of Russian territory to aerial surveillance. Although the Russians have reserved the right to require use of one of their own aircraft to carry foreign observers on Open Skies flights, they have granted all participating states full access to the airspace covering their entire territory. Realizing that vast portions of the former Soviet Union have historically consisted of prohibited areas, this monumental achievement should not be underestimated. In addition, Russia and the other newly independent states on the territory of the former Soviet Union have agreed to open their territory to scrutiny by a wide variety of sensors including optical, synthetic aperture radar, and infra-red systems, which together can provide an all-weather, day-night capability. This too represents a significant step forward in bringing the former Soviet Union into a collaborative relationship with building new security arrangements in Europe.

A secondary military transparency benefit comes from the very process of Open Skies. One of General Powell's recent initiatives established to promote openness and build trust is a program of military-to-military contacts with our friends in Eastern Europe_ Although the Open Skies regime itself is not an integral part of this program we see potential benefits along these lines when military members and representatives interact in the conduct of the observation flights. We would view the Open Skies process as enhancing desirable military-to-military contacts, and thus contributing to broader international stability.

While the Treaty on Open Skies is not an arms control agreement in the traditional sense, it creates an independent aerial regime designed to promote increased openness and transparency in military activities—a confidence building measure if you will. It is difficult to quantify the military utility of such measures separately, but I am certain you would agree that the collective effect of a series of such measures does indeed positively assist our military security posture.

Although the Open Skies regime is not tied to any existing arms control agreement, there is sufficient inherent flexibility in the program to complement the active verification efforts of other arms control agreements. For instance, Open Skies observation flights could overfly sites of interest stemming from implementation of the Intermediate-Range Nuclear Forces (INF) or Conventional Armed Forces in Europe (CFE) Treaty. Should information collected on an Open Skies flight reveal ambiguous military formations or equipment, this information could be used to trigger on-site inspections under the verification provisions of existing arms control regimes, Further, Open Skies flights can reach east of the Ural mountains and help reinforce confidence that the Russians are fulfilling their promises regarding the disposal of conventional armaments and equipment removed from the CFE area of application prior to that Treaty's entry-into-force. In a similar manner, Open Skies provides the potential to enhance U.S. efforts to detect and deter violations of the Strategic Arms Reduction Treaty (START), INF and other arms control treaties.

In summary, the Treaty on Open Skies is consistent with the principle stated in the President's National Security Strategy to cooperate with the newly independent states on the territory of the former Soviet Union and with others in achieving agreements that promote security and stability. General Powell, in the National Military Strategy, stated that "future threats to U.S. interests are inherent in the uncertainty and instability of a rapidly changing world." The Treaty on Open Skies contributes measurably to managing and reducing the uncertainty and instability in an area of critical interest to the United States. The Joint Staff, therefore, supports prompt ratification and implementation of the Treaty on Open Skies.

The Chairman. Thank you very much.

Turning now to the ranking member, Senator Lugar.

Senator Lugar. Thank you very much, Mr. Chairman,

I would like to ask any member of the panel who has been involved in the CFE negotiations a question about the cross-compliance in that treaty. Certain of you in your testimony have mentioned that Open Skies certainly underlines and supports those obligations.

Just for the sake of memory as well as for the record, as I recall, with the CFE there were limits on the arms so there was an arms control element, but there was also a very high degree of cross-inspection implied, and it depended upon the vigor, I suspect, of the members as to how they wished to exercise that. If exercised to a great extent, it could lead to very good knowledge and, finally, a termination of suspense as far as military preparations.

To what extent has any of this been going on, and how does Open Skies fit? It is a supplement, or is it the major way in which CFE will be implemented? Can you describe the interactions of these two treaties?

Mr. Hawes. Senator Lugar, the verification provisions of the CFE agreement were designed to be self-standing and designed to provide adequate verification for that agreement as such. And, in that sense, Open Skies can be an interesting supplement, particularly for countries which do not have NTM but is not, in any sense, a major contributor to the verification of the CFE and is in no way linked to it.

During the course of the negotiations we were proceeding, as you understand, on parallel tracks. We had a proposal for CFE verification and a proposal for Open Skies. As it turned out, the CFE was completed with a complete verification package much earlier, and it is self-standing.

Senator Lugar. Even self-standing, are the countries exercising their rights? Obviously, the benefit of the thing to all of us is that all the countries actively begin inspecting each other. I suppose, just informationally, I want to know whether that is happening, and if it is not, to what extent this fills in the gap even if it is an independent treaty.

Mr. Graham. Well, with respect, Senator Lugar, to the. implementation of the CFE Treaty, the states-parties, are very much utilizing their rights that they have under the treaty. The treaty only came into force in early November of last year, so these inspections, in a significant way, have just begun. But they actually began last summer with a provisional period during which baseline inspections were carried out.

But they are very much being exercised. Open Skies, of course, is not yet in force but we fully expect the parties to exercise their rights there as they see fit.

But Open Skies is, as Ambassador Hawes indicated, on a somewhat separate track from CFE. CFE relies on on-site inspection on the ground almost entirely, whereas Open Skies is a confidence building measure not designed specifically for arms control verification,

Senator Lugar. I think you tried to answer this in your testimony, but the average citizen looking at all of this would say that Open Skies was proposed a long time ago, as you have said. CFE and other regimes have come in the meanwhile, have even been completed. This is about to come out on the other side. And I would grant that most of the cross-compliance does seem to be on the ground, although that was not limited, as I recall by the Treaty. It is contemplated that things could be done from the air.

How would you argue that, with CFE in place and a great deal of activity in terms of verification, that there is value? It is entirely that there is a new perspective for many countries from the aerial view that is not occurring in their on-the-ground inspections?

Mr. Graham. Well, it permits a great deal more participation by other countries in monitoring in these overflights. Also, of course, it covers territory beyond the Urals that CFE does not cover.

Senator Lugar. There is new territory beyond the Urals situation. Right. Whereas, CFE, obviously, covers to the Urals from Great Britain. And then, of course, Open Skies includes the United States in the picture, at least, of others they were flying.

In a technical sense, what is the policy of the United States with regard to the question of liability raised by Poland? How do we plan to deal with that? As I understand it, the Poles raised a question that if damages occurred during the inspection process, that——

Mr. Graham. The treaty's provision on liability is intended to be consistent with international law. And, in essence, what it says is that if, in the course of implementation of the Treaty, a party does something that under international legal rules causes it to be liable for damages, it is liable for damages. And the existence and operation of this treaty does not exempt it from that.

I had an explanatory statement in my statement that sets forth what we believe to be the correct interpretation. If the United States uses an observed part/s aircraft, the so-called "taxi option," and liability results from the operation of that aircraft, the United States would not be liable under the provisions of the liability article.

Senator Lugar. Mr.- Graham, your testimony was meant to phrase what we will assert as an addition to the Treaty or as a part of our ratification? Or how do you establish what——

Mr. Graham. We believe it to be wholly consistent with the meaning of Article XII, which is somewhat broad in its wording, and wholly consistent with international law. But we will communicate this interpretation at the Open Skies Consultative Commission to the other parties.

Senator Lugar. Finally, can any of you give an idea of the budgetary impact, coat, of this, annually?

Mr. Inglee. Mr. Senator, I testified in the fall on what I thought would be the anticipated cost for the acquisition and the modification of the aircraft. In September, I identified a requirement of approximately $85 million for the modification of the necessary aircraft. That budget projection has been about right. In fiscal year 1992 and fiscal year 1993, we have basically capitalized U.S. inspection requirements because the Congress has authorized and appropriate funds for the modification of those aircraft. And this continues to go forward.

For fiscal year 1994, we anticipate a budget request in the $20 million to $25 million range. This will not be for the modification of the aircraft but rather for the O&M costs associated with crew training, initial flights that will be required, and research and development of sensor systems that will be placed on the aircraft. OSIA will also have extensive training and manning requirements, and that will also be a component of that.

But we are really now on the downside of the curve in terms of the budget expenditures, and we would probably estimate a similar figure, maybe slightly higher, for fiscal year 1995, in the $20 to $28 million range, with the primary out year cost being in the O&M area because we will have finished up, I think, most of out research and development requirements for the sensory systems.

Senator Lugar. So, $25 to $28 million then is operational, plus some training of new personnel as required?

Mr. Inglee. That is right.

Senator Lugar. Do any of you have any idea how many years we might be involved in this? You get one of these things started and people are making the flights—are changing conditions in the world an approximate reason why you finally decided to call it all off or modify the schedules?

Mr. Hawes. The Treaty is open-ended. Obviously, the technology involved in the Treaty is at a particular point in time, and it may at some point in time no longer be relevant to most countries in the world and you would find that it was surpassed. On the other hand, we cannot project that-

At the moment, I would project that there might be an expanding interest in other parts of the world in utilizing it, which might go on for sometime.

Senator Lugar, What happens if we decide that we are weary of spending the $25 million each year, or whatever it has been inflated to at that point, but other parties say, "Well, we would like to keep flying over the United States"?

Mr. Hawes. Basically, the country which is doing the flying pays. If they wish to come to the United States, that is largely at their expense.

Senator Lugar. That could go on forever under this treaty technically.

Mr. Graham. But there is no requirement that we continue to spend money if we——

Senator Lugar. I understand. But we are vulnerable forever to the Open Skies Treaty once it begins.

Mr. Hawes. Yes.

Senator Lugar. There is no way for us to turn it off and say, "We really do not want you flying over us anymore."

Mr. Hawes. There is a provision in the Treaty—you may leave the treaty, obviously, as with most agreements.

Senator Lugar. Thank you, Mr. Chairman.

The Chairman. Thank you very much. Senator Coverdell.

Senator Coverdell. I have only a few questions, Mr. Chairman. Thank you-

Would you elaborate on the "taxi" aircraft concept, and I apologize if you have already covered this in more detail before my arrival. But the "taxi" aircraft concept was raised, as you noted. Ambassador Hawes—by the Soviets. Do you envision them being the only country that would impose this added requirement? Does it lead to a quid pro quo situation whereby we would employ the "taxi" option on our side because they have begun to invoke it on their side? Where does all that go?

Mr. Hawes. Certainly, no other country participating in the negotiations expressed an interest or a requirement to provide their own airplane over their own territory. I think every other participant, like ourselves, would plan to receive foreign airplanes over their territory and would prefer to fly their own airplanes over other people's territory.

The impetus for the so-called "taxi option" in Soviet thinking, now Russian thinking, purports to be one of military security, keeping foreign airplanes out of their air space. We believe that to be grossly exaggerated, even in their terms. It developed in the negotiation as a fundamental quid pro quo, and the exchange was made that we insisted on full territorial openness and said that in return for full territorial openness, we would accept, if they insisted, their desire for an option to provide the airplane in their territory. And that was the fundamental deal, if you will, of the negotiation.

To make that deal acceptable in terms of actually providing information which would build people's confidence, we then had to write a whole series of provisions on the certification and inspection of the aircraft so that it could, in fact, accomplish the mission, that it would have the right sensors of the right quality, that it would fly at the right altitudes and have the right ground coverage. And we think we have done that in the agreement.

You asked whether we would, ourselves, insist on providing a so-called "taxi" aircraft in the United States. I think the answer is no. I think we would find that to be inconsistent with our basic objectives and not required by our security. We believed from the beginning that our security did not require limiting the access to foreign aircraft. That was the first decision we made, and I think we would stick with that,

Senator Coverdell, If I might follow up on that question. Mr. Inglee, you were talking about the budget cost, in response to Senator lugar's question- What does the imposition of the "taxi option" do to your budgeting? In other words, is Russia in a position to arbitrarily affect the costs you projected for the program by their ability to demand that you use an aircraft of their choosing?

Mr. Inglee. Mr. Senator, during the course of the negotiations, we were concerned about this same issue, and the outcome has been satisfactory from our perspective. Under the terms of the agreement, the fixed costs that you would use in a taxi aircraft are set by a commercial rate established based upon Cologne, Germany for all participants, and the navigation fees and other associated fixed flight fees are waived.

In our calculation, whether we use their aircraft or ours, it is roughly comparable, approximately $100,000 to $150,000 in terms of the aircraft usage itself. So, in the final analysis, even though we were concerned initially—and I think Ambassador Hawes focused on this, in the early stages of the negotiations, making it very clear that this agreement could not work to our disadvantage budgetarily—the final agreement reached is one in which there is very little difference in the cost of the taxi option versus using a U.S. aircraft.

Senator Coverdell, Back to you, Ambassador Hawes. No one can foresee the future, perhaps even less so now than we might have envisioned sometime ago. Are there any facilities within the treaty that would allow the taxi option provision, under the current circumstances, to be removed? Could it be re-visited at anytime? That is the first question.

The second question is: Would it not be detrimental—so to speak—to the spirit of the treaty, if, without any safeguards, the "taxi" provision was used too frequently. And if that were to be the case, what are our options with regard to the treaty itself? Would a violation of this kind allow us to say the treaty is no longer, in effect? Or what would be the option in the event it were used as an instrument to violate its spirit?

Mr. Hawes. What you have in Article VI, I believe is a provision that the observed party has the choice of the airplane, if it wishes to have the choice of the airplane. Otherwise, the observing party will provide the plane.

In the first instance, this is a question of whether or not any party, and specifically, Russia, chooses to exercise that option. They are still somewhat unclear as to what their intentions are or whether their intentions are to be consistent. And this looks to their security policy. It looks, frankly, to their financial policy opportunities. We do not know what their intentions will be. We continue to encourage them to be as open as possible on this and, therefore, also, to accept other country aircraft.

So you could, obviously, change their policy simply as a matter of policy without amending the treaty. Because it is part of an article of the treaty, if you were to formally change it, it would be an amendment process and would have to come back here for advice and consent, if that were to occur. Could occur.

As I said, the Russian Government is the only government who has expressed any interest in this option. I think it would be unlikely that other participants would wish to make it a general practice. Very, very unlikely. And it is uncertain whether the Russian Government, in fact, intends to make it a consistent practice itself-

Senator Coverdell. Thank you. Thank you, Mr. Chairman.

The Chairman. Thank you very much.

I have several relatively short questions that I want to ask. As I understood it from General Rinebarger, the Joint Chiefs fully support this treaty.

General Rinebarger. That is correct, sir.

The Chairman. Was it mentioned earlier that there would be one plane offered in June for this purpose?

Mr. Inglee. Yes, Mr. Chairman. We currently plan on having one plane ready in June of this year with two others in the process of being modified to meet this task.

The Chairman. And what will be the annual cost to the United States, including all three planes?

Mr. Inglee. Mr. Chairman, are you asking what will be the cost of upgrading the aircraft to the requirements for the treaty, or what would be the annual operational figure?

The Chairman. I am really asking how much additional tax dollars would have to be spent by ratifying this agreement.

Mr. Inglee, Now, in terms of fiscal year 1994, we are anticipating approximately $20 to $25 million. As you know, the budget is still under review at the Department of Defense, but this is being factored into the budget review.

In fiscal year 1995 we anticipate it being a little bit higher, $21 to $28 million, in that range, with some flexibility there because we have tried to plan based upon optimum usage. But those are the rough numbers for the fiscal year 1994 and fiscal year 1995.

The Chairman. I do not mean, by asking these questions, to indicate lack of support for the treaty, I do support it. I think it is a good investment. But in this time of budget-tightening I think there will be efforts made maybe to reduce the cost of our implementation of it. How I do not know; maybe just keeping it to one plane or two planes.

Mr. Inglee. Mr. Chairman, as you know, the Department is carefully scrutinizing all budget requests, and the Department of Defense would not want——

The Chairman. Being a Senator from Rhode Island, I am well aware of what is going on.

How much would the Open Skies overflight of the United States by another State Party cost? In other words, what would it cost Great Britain or some other nation that wanted to overfly us?

Mr. Inglee. That would primarily require OSIA manning and accompaniment of the teams, I would probably have to get back to you on the——

The Chairman. Maybe you could submit the answer to that question for the record.

Mr. Inglee. I would be happy to.

[The information requested follows:]

The unreimbursed costs to the United States to support and escort a foreign overflight mission of the United States will be about' $25,000. This figure assumes a five to six day overflight visit and includes: ground support and security for the foreign aircraft ($3,000); escort of the mission by an OSIA team ($13,000); and the costs associated with monitoring the processing of the data collected ($8.000).

OSIA will pay up-front costs for fuel and other aircraft consumables, which will ultimately be repaid to the United States. Estimated costs for reimbursable expenses could be about $50,000 per overflight mission.

The Chairman. Thank you.

Now, given the costs of the Open Skies regime and benefits to be derived from it, what is the main argument to justify participation and implementation of the treaty? In other words, in this era of good feeling, of peace or whatever you want to call it, why is it a good idea to go ahead with it?

Mr. Graham. Mr. Chairman, we consider this to be a very important confidence-building measure for all of the countries of Europe, both east and west; and it will add to openness between all states and extend this area of openness beyond the Urals, as I indicated earlier, which will also be a benefit.

Mr. Hawes, If I may add to that, Mr. Chairman, many of the countries, particularly of central and eastern Europe, while welcoming the dissolution of the Warsaw Pact, welcoming the end of the bipolar confrontation, felt themselves, during the course 6f this negotiation, somewhat at a loss for security orientation and Were anxious to develop new mechanisms to deal with security questions to gather information, to provide a way of exchanging information on security.

This is one of those things which I think they see as helping to nail down the present era of security and continuing it forward. I think that and the possibility, also, of building confidence-building measures into other regions of the world are very important benefits from this agreement.

The chairman. I would concur with you, but I just think these questions should be asked, softball questions if you like, but they are questions that the American people ask» too.

I think Mr. Gallucci wanted a word.

Mr. Gallucci. Mr. Chairman, since it is a softball, I would like to also speak to it.

I think it would be a mistake to assess the value simply in terms of the amount of information that the United States will gain from this, and I think all of us have spoken to that point. It may, indeed, help us; it is a confidence and security-building measure.

But its potential, I think, Mr. Chairman, for other states, the states that have adhered to it now and who may adhere to it in the future, to have access to information they would not otherwise have on neighbors about whom they have security concerns—I think that is a real potential in the treaty and one that has potential to contribute to stability in other regions and something, therefore, that we have a very serious security interest in.

So I think I would put some substantial weight there.

The Chairman. Thank you. I will turn to my colleagues now.

Senator Lugar. I have no more questions, Mr. Chairman.

Senator Coverdell. Nor do I, Mr. Chairman.

The Chairman. Thank you.

Have there been any criticisms of the Open Skies regime in the United States or by other States Parties to the Treaty, of which you are aware?

Mr. Graham. I am aware of none.

The Chairman. Good. I wish all treaties were like that.

When is this treaty likely to enter into force if we move ahead with this recommendation towards ratification?

Mr. Graham. It requires the ratification of 20 signatories. We currently have three. So we are still some 16 signatories away from entering into force. So, I do not know. Another year, perhaps.

The Chairman. Are there any states likely to accede to the treaty after it enters into force?

Mr. Hawes. The treaty has provisions in the first instance to invite any of the European states participating in the Conference on Security and Cooperation in Europe to enter the Treaty after it enters into force. We would expect most of them to be interested.

The treaty also provides that 6 months after entry into force, any other state anywhere may apply. We would expect interest in a number of quarters outside of the actual area of the original signatories.

I should add further that the treaty automatically provides rights of participation to all of the successor states of the former Soviet Union. Five of them are now participants. The others are invited to sign at any time they wish, and we would expect some of them to do so.

The Chairman. Small states, then, could ratify the treaty, sign the treaty.

Mr. Hawes. Yes.

The Chairman, A state like Luxembourg or Liechtenstein.

Mr. Hawes. Luxembourg is an original participant. Liechtenstein could, eventually, as a CSCE participant.

The Chairman. And will the administration terminate or reduce the aid under the Nunn-Lugar provision in the event the States Parties who have received such aid violate provisions of the Open Skies Treaty?

Mr. Graham. Mr. Chairman, that was the purpose of the comment I made about this treaty being considered an arms control treaty for the purposes of the Nunn-Lugar Act and the Freedom Support Act, a violation of which could be considered in the process of re-certification or de-certification under those acts.

The Chairman. Thank you. Mr. Mathews.

Senator Mathews. Mr. Chairman, I am just trying to catch up this afternoon. I have had a pretty busy day and I wanted to catch as much of this as I can. I will pass on this go around.

The Chairman. No more questions?

Senator Lugar. No, Mr. Chairman.

The Chairman. I thank you for a very good and specific and lucid presentation. We look forward to following up to the best of our ability as quickly as we can.

Thank you- Hearing adjourned.

[Whereupon, at 3:55 p.m., the committee was adjourned, subject to the call of the Chair.]

____________

[1] For a comprehensive discussion of the Committee's views on this subject, see "the INF Treaty, Report of the Committee on Foreign Relations," April 14, 1988 (Exec. Rpt. 100-15, 100th Congress, Second Session), pp. 87-108.



 



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