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 States 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 such 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.

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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 I 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 tight 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 s all inform other States Parties whether it will exercise i@s 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 72-hour 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 acknowledgement 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 acknowledgement.

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 11 of Annex F. Such inspection :hall 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 guide- lines on flight safety of the observed Party. However, the ICAO standards and recommended practices, as well as the observed Party'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 the 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 pre-flight 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 1 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 1, 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 11, 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 11, entitled "Requirements for Mission Planning," consists of eight paragraphs.

Paragraph I of Section 11 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 11 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 refuelling stops or rest periods, and the time of continuation of the observation flight after a refuelling stop or rest period, which must be within the 96-hour period specified in Section 1. 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, an 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 1, 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 11 states that the observed Party must accept the mission plan within four hours of its submission or propose changes to it. Such changes must be proposed-in accordance with paragraph 5 of this Section or Article VIII, Section 1, 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 at hazardous airspace. The Parties must sign the mission 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 11 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 no 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 obser- vation 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 int rpreters are not mentioned separately in that Annex.

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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 transitted.

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.

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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 pre-flight 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 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 maieure. Force maieure 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 11 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 VI 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 11 states the general rule that if a deviation from the flight plan, as set forth in paragraph I 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 a 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 in 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 11 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 11 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.

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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 reel of magnetic tape used to collect data by a sensor during an observation flight be placed in a container and sealed in the presence 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 11 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 provisional 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 the 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 the 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 that 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 then 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.

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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 I 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:

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 XVII 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 1, 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 1, 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.

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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 1, 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 1, paragraph 1.

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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, or 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 that 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.

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