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 I 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 I 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:

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 11 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 I of Section II provides that in order to Txercise 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:

Paragraph 1 of Section II also atates 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:

Article 34 of the Vienna Convention provides that:

Article 35 of the Vienna Convention provides that:

Article 36, subparagraph l(b) provides that:

Paragraph 3 of Section 11 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 3 of the Vienna Convention provides that:

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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 XIV 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 States 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 1, paragraph l(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.

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Article XV of the Treaty deals with the duration of and the procedures for 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 a 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 Depositaries 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 Depositaries, Entry into Force and Accession. Paragraph 7 of Article XVII lists the duties of the Depositaries of the Treaty.

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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 I 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 1, 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.

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Article XVII of the Treaty deals with the duties of the Depositaries, 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 I 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 second 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 quotas 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:

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 State 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 for 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 1, paragraph 2 of the Treaty which provides in part that an allocation of a passive quotas to such a State shall 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 paragraphs 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 instruments 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:

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Article XVIII deals with the provisional application of certain provisions of the Treaty and the phasing of imple- mentation 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 I 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 without 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 provisions 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:

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 1, 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, 1992, each State Party shall provide notification to all other States Parties:

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 I 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 I of Section I of this Article provides that Article XIII, Section 1, paragraphs 1 and 2 of the Treaty are to be applied provisionally. Article XIII, Section I deals with Designation of Personnel. Article XIII, Section 1, 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 I 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 I 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.

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 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.

Article XIII, paragraphs I 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 XIV, paragraph I 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 l(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 1, paragraph I 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:

In the above mentioned paragraphs, the open Skies Consultative Commission has been obligated to accomplish particular tasks during the period of provisional appli- cation. 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 having 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 text. 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 11 applies.

Paragraph 2 of Section 11 provides that notwithstanding the provisions of Article IV, paragraph 1, 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 I 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:

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 I 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 unrefuelled 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 unrefuelled 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 11 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.

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Article XIX consists of one paragraph. It deals 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 duly 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.

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