CTBT

ARTICLE IV - VERIFICATION

Article IV of the Treaty sets forth the rights and obligations of the States Parties with respect to the verification regime established by the Treaty. This Article is divided into five Sections. Section A sets forth the general obligations of the States Parties in verifying compliance with the Treaty. Section B establishes the basic functions and characteristics of the IMS and the IDC. Section C sets forth the procedures for the consultation and clarification process of the Treaty. Section D sets forth rights and obligations of the States Parties in the implementation of the onsite inspection mechanism of the Treaty. Lastly, Section E sets forth the confidence-building measures of the Treaty.

The verification regime is designed to monitor phenomena worldwide so as to detect the occurrence of nuclear explosions anywhere and facilitate the resolution of ambiguous events. The breadth of its coverage is intended to create a significant deterrent against possible efforts to seek to evade the ban on testing.

A. General Provisions

Section A of Article IV establishes the various components of the verification regime of the Treaty -- the IMS; consultation and clarification system; on-site inspections; and confidence-building measures -- the general rights and obligations of the States Parties regarding this regime, and verification responsibilities of the Technical Secretariat.

The absence of "national technical means of verification" in the list of components of the Treaty verification regime does not imply that national technical means cannot be used for verification. As confirmed in paragraphs 5 and 6 of this Article, national technical means of verification (NTM) are recognized as means by which States Parties will verify compliance with Treaty provisions. During the negotiations, some states argued that NTM should not be an authorized method for verifying Treaty compliance, and that information obtained by such means should not be used as the basis for a request for an on-site inspection because they believed that NTM would be used in a discriminatory manner by those states that possessed to a greater degree such methods of verification. The United States remained steadfast in its view that NTM be specified in the Treaty as being a legitimate verification tool, as well as providing the basis for an on-site inspection. The resulting provision, paragraph 37 of Section D of Article IV, provides that an on-site inspection request shall be based on information collected by the IMS, national technical means, or a combination of these methods (this specific issue will be addressed in greater detail in the analysis of paragraph 37 of this Article).

Paragraph 1 of Article IV provides that when the Treaty enters into force, the verification regime shall be capable of meeting the verification requirements of this Treaty. However, the Treaty does not quantify its verification requirements nor specify what precise capabilities are needed to meet these requirements, beyond indicating that the IMS and IDC shall have operational capability at entry into force. The U.S. believes that the Treaty does not require that all IMS facilities and all IDC capabilities must be operational at entry into force. In this respect, paragraph 13 of the Preparatory Commission Text provides that the Preparatory Commission shall undertake all necessary preparations to ensure the operation of the Treaty's verification regime at entry into force, pursuant to paragraph 1 of Article IV, and shall develop appropriate procedures for its operation. A report from the Preparatory Commission on the operational readiness of the regime, together with any relevant recommendations, will be presented to the initial session of the Conference of the States Parties.

Paragraph 2 of Article IV describes the basic principles and limitations subject to which all verification activities of the Treaty must be carried out. Specifically, all such verification activities shall be: based on objective information, limited to the subject matter of the Treaty, carried out on the basis of full respect for the sovereignty of the States Parties to the Treaty, and carried out in the least intrusive manner possible consistent with the effective and timely accomplishment of their objectives. In addition, each State Party is required to refrain from any abuse of its right of verification as set forth in the Treaty.

Paragraph 3 of Article IV provides that each State Party must cooperate with the Organization and other States Parties to facilitate verification of compliance with the Treaty. This cooperation shall be carried out through each state's National Authority, which is to be established pursuant to Article III, paragraph 4 of the Treaty. Paragraph 3 lists some examples of the type of cooperation envisioned, including:

(b) providing data obtained from national stations that are part of the IMS;

(d) permitting the conduct of on-site inspections; and

(e) participating, as appropriate, in confidence-building measures.

Paragraph 4 guarantees to each State Party the equal right of verification, and demands from each State Party an equal obligation to accept verification. Note, that this paragraph only applies to the international verification measures and activities established by the Treaty.

As noted, paragraph 5 provides that for the purposes of the Treaty, no State Party shall be precluded from using information obtained by NTM in a manner consistent with generally recognized principles of international law, including that of respect for the sovereignty of states. The term "national technical means of verification," in the context of the CTBT is meant to include a broad range of means for collecting information relevant to verifying compliance with the Treaty. Such means include, but are not limited to: IMS-type sensors that are nationally owned and operated and other national means of collecting information such as reconnaissance satellites, ships, aircraft, and ground stations equipped with non-IMS-type sensors.

With the exception of the phrase "including that of respect for the sovereignty of States," this paragraph is very similar to provisions in earlier arms control agreements, such as paragraph 1 of Article XII of the INF Treaty, paragraph 1 of Article XII of the ABM Treaty, paragraph 1 of Article IX of the START I Agreement, and paragraph 1 of Article XV of the CFE Treaty. The inclusion of the phrase "including that of respect for the sovereignty of States," was proposed by a number of states who had reservations regarding the inclusion of any NTM provision in the Treaty. In the view of the United States,"respect for the sovereignty of States" is a generally recognized principle of international law, and its inclusion creates no additional constraints beyond the phrase "in a manner consistent with international law."

Paragraph 6 provides that without prejudice to the right of States Parties to protect sensitive installations (as set out in paragraph 7 of Article IV); activities or locations not related to this Treaty, States Parties shall not interfere with elements of the verification regime of this Treaty or with national technical means of verification operating in accordance with paragraph 5. The reference to NTM in this paragraph is modeled after similar provisions in other arms control treaties. Pursuant to this paragraph, a State Party cannot destroy, blind, jam, or otherwise interfere with the NTM of another State Party that are used in a manner consistent with generally recognized principles of international law, including that of respect for the sovereignty of states. The phrase "without prejudice to the right of States Parties to protect sensitive installations, activities or locations not related to this Treaty" is included to make clear that the obligation not to interfere with verification activities or NTM does not prevent a state from protecting unrelated information or locations of a sensitive nature.

Similarly, paragraph 7 provides that each State Party has the right to take measures it deems necessary to protect sensitive installations and prevent disclosure of confidential information and data not related to the Treaty. Paragraph 8 provides that all necessary measures shall be taken to protect the confidentiality of any information related to civil and military activities and facilities obtained during verification. Paragraph 9 of Article IV sets forth the responsibility of the Organization, subject to its obligations provided in paragraph 8, to make information available to all States Parties in accordance with the relevant provisions of the Treaty and the Protocol.

Paragraph 10 provides that nothing in the Treaty shall be interpreted as restricting the international exchange of data for scientific purposes. During the Treaty negotiations, states recognized that the international community was engaged already in the extensive exchange of data and cooperative establishment of facilities, such as seismic data and stations, for scientific purposes. This paragraph was agreed to among the states to make clear that the Treaty does not in any way restrict such activities.

Paragraph 11 of Article IV addresses the possible improvement of the verification regime in the future to enhance its efficiency and cost-effectiveness, including the possibility of adding new technologies to the current IMS structure. It specifically mentions the possibility of electromagnetic pulse monitoring or satellite monitoring as possible additional monitoring technologies of the verification regime Specifically, the paragraph requires each State Party to cooperate with the Organization and other States Parties in improving the verification regime, and in examining the verification potential of additional monitoring technologies. Such measures might be added to the Treaty or as additional sections of the Protocol upon the agreement of the States Parties and in accordance with Article VII or, if appropriate, reflected in the operational manuals developed in accordance with paragraph 44 of Article II. In this respect, Article VII of the Treaty sets forth the Treaty amendment procedures and the procedures for making technical and administrative changes other than by amendment to the Treaty text. The analysis of paragraphs 23 to 25 of this Article discusses the way in which changes to the IMS system can be made in accordance with Article VII of the Treaty. Paragraph 44 of Article II mandates the Technical Secretariat to maintain operational manuals to guide the operation of the components of the verification regime.

Paragraph 12 addresses the value of the cooperation among the States Parties in exchanging information on technologies for verification of the Treaty. Specifically, it provides that the States Parties undertake to promote cooperation among themselves to facilitate and participate in the fullest possible exchange relating to technologies used in the international verification of the Treaty in order to enable all States Parties to strengthen their national implementation of verification measures and to benefit from the application of such technologies for peaceful purposes. However, this provision does not require the U.S. to provide sensitive technologies or data to other States Parties to the Treaty. Paragraph 13 provides that the provisions of the Treaty shall be implemented in such a way as not to hamper the economic and technological development of the States Parties for development of the application of atomic energy for peaceful purposes.

Verification Responsibilities of the Technical Secretariat

Paragraphs 14 and 15 set forth information on the verification responsibilities of the Technical Secretariat. Paragraph 14 sets forth the duties of the Technical Secretariat to be carried out in cooperation with the States Parties. These duties include the receipt, dissemination, storage and analysis of data and other information obtained through the activities that comprise the verification regime.

For purposes of the Treaty, the Technical Secretariat shall do the following:

Paragraph 14 makes clear that the Technical Secretariat will have a role in IMS operations. Also, regarding subparagraph 14(a), paragraph 5 of Part I of the Protocol provides that modalities for cooperation between the Organization and States Parties or states hosting or otherwise taking responsibility for facilities of the IMS shall be set out in agreements or arrangements as appropriate in each case. Paragraph 12(b) of the Preparatory Commission Text provides that the Preparatory Commission shall develop standard model agreements or arrangements where relevant, to be concluded by the future Organization with States Parties, other states and international organizations. The Preparatory Commission shall also develop agreements or arrangements negotiated in accordance with the above models by the Provisional Technical Secretariat (with relevant states), in particular with those prospectively hosting or otherwise taking responsibility for IMS facilities. Lastly, paragraph 26 (h) of Article II of the Treaty provides that the Conference shall consider and approve at its initial session any draft agreements, arrangements, provisions, procedures, operational manuals, guidelines and any other documents developed and recommended by the Preparatory Commission.

(b) Routinely (through its IDC, which shall in principle be the focal point within the Technical Secretariat for data storage and data processing):

(ii) Receive data, as appropriate, resulting from the process of consultation and clarification, from on-site inspections, and from confidence-building measures; and

(iii) Receive other relevant data from States Parties and international organizations in accordance with the Treaty and the Protocol;

Subparagraph 14(b)(i) should be read in conjunction with paragraph 16, Part I of the Protocol to the Treaty, which establishes the basic obligation of the IDC to receive, collect, process, analyze, report on and archive data from the IMS facilities (including results of analyses conducted at certified laboratories). In addition, paragraph 20 of Part I of the Protocol also addresses the IDC services to States Parties (further analysis on this issue is provided in the analysis of paragraph 20).

(c) Supervise, coordinate and ensure the operation of the IMS and its component elements, and of the IDC, in accordance with the relevant operational manuals. Part I of the Protocol provides that a number of Operational Manuals will be developed to address detailed issues related to the different verification technologies that make up the IMS. Specifically, there will be an Operational Manual for Seismological Monitoring and the International Exchange of Seismological Data, an Operational Manual for Radionuclide Monitoring and the International Exchange of Radionuclide Data, an Operational Manual for Hydroacoustic Monitoring and the International Exchange of Hydroacoustic Data, and an Operational Manual for Infrasound Monitoring and the International Exchange of Infrasound Data. In addition, the Preparatory Commission will develop an Operational Manual for the IDC. Drafts of these manuals will be approved by the Preparatory Commission (see Annex 1 to the Preparatory Commission Document) and adopted by the initial Conference of the States Parties pursuant to paragraph 26(h)of Article II, of the Treaty;

(d) Routinely process, analyze and report on IMS data according to agreed procedures so as to permit the effective international verification of the Treaty and contribute to the early resolution of compliance concerns;

(e) Make available all data, both raw and processed, and any reporting products, to all States Parties, each State Party taking responsibility for the use of IMS data in accordance with paragraph 7 of Article II, and paragraphs 8 and 13 of this Article;

(f) Provide to all States Parties equal, open, convenient and timely access to all stored data;

(g) Store all data, both raw and processed, and reporting products;

(h) Coordinate and facilitate requests for additional data from the IMS;

(i) Coordinate requests for additional data by one State Party to another State Party;

(j) Provide technical assistance in, and support for, the installation and operation of monitoring facilities and respective communication means, where such assistance and support are required by the state concerned. This subparagraph should be read in conjunction with paragraph 17 of this Article, which provides that all the monitoring facilities of the IMS shall be owned and operated by the states hosting or taking responsibility for them. In this respect, subparagraph (j) makes clear that the Technical Secretariat shall provide technical assistance and required support to the states of those monitoring facilities. (Such support should provide a mechanism for ensuring that site installations are done properly.);

(k) Make available to any State Party, upon its request, techniques utilized by the Technical Secretariat and its IDC in compiling, storing, processing, analyzing and reporting on data from the verification regime;

(l) Monitor, assess and report on the overall performance of the IMS and of the IDC.

The Technical Secretariat, including the IDC, is not empowered to recommend or state any conclusions related to a State Party's compliance with the basic obligations of the Treaty.

Paragraph 15 of Article IV provides that agreed procedures to be used by the Technical Secretariat in discharging the verification responsibilities referred to in paragraph 14 and detailed in the Protocol shall be elaborated in the relevant operational manuals. The manuals referred to here are those mentioned in the analysis of subparagraph 14(c) of this Article.

B. The International Monitoring System

Section B of Article IV has thirteen paragraphs that set forth the funding of the IMS, provisions for changing the IMS, temporary arrangements, and the use of cooperating national facilities outside the IMS.

Paragraphs 16, 17 and 18 set forth the general provisions for the IMS. Paragraph 16 specifies that the IMS shall comprise facilities for seismological monitoring, radionuclide monitoring including certified laboratories, hydroacoustic monitoring, infrasound monitoring and respective means of communication. This system shall be supported by the IDC of the Technical Secretariat.

Paragraph 17 of Article IV establishes that the IMS shall be placed under the authority of the Technical Secretariat and that all of the monitoring facilities shall be owned and operated by the state hosting or otherwise taking responsibility for them in accordance with the Protocol. In this respect, Part I of the Protocol, particularly paragraphs 1 through 5, sets forth general provisions for states that are hosting or taking responsibility for monitoring facilities of the IMS. It should be noted here that both States Parties to the Treaty and other states can host or otherwise take responsibility for IMS facilities (see paragraph 4, Part I of the Protocol).

Paragraph 18 sets forth the right of every State Party to participate in the international exchange of data and to have access to all data that is made available to the IDC. In addition, each State Party, through its National Authority, shall cooperate with the IDC.

Funding the International Monitoring System

Paragraphs 19 through 22 address the issue of funding the IMS. Paragraph 19 provides that, for facilities incorporated into the IMS, which are listed by location and type in Tables 1-A, 2-A, 3 and 4 of Annex 1 to the Protocol, the Organization is responsible for funding the activities listed in paragraphs 19 (a) through (d) (which are listed below) to the extent that such facilities are agreed by the relevant state and the Organization to provide data to the IDC in accordance with the technical requirements of the Protocol and relevant operational manuals. Part I, paragraph 4 of the Protocol provides that the State Party or other state that is hosting or otherwise taking responsibility for IMS facilities and the Technical Secretariat shall agree and cooperate in establishing, operating, upgrading, financing, and maintaining monitoring facilities, related certified laboratories and respective means of communication within areas under its jurisdiction or control or elsewhere in conformity with international law. The Organization shall meet the costs of:

(b) Operating and maintaining IMS facilities, including facility physical security if appropriate, and application of agreed data authentication procedures;

(c) Transmitting IMS data (raw or processed) to the IDC by the most direct and cost-effective means available, including, if necessary, via appropriate communication nodes, from monitoring stations, laboratories, analytical facilities or from national data centers; or such data (including samples where appropriate) to laboratory and analytical facilities from monitoring stations; and

(d) Analyzing samples on behalf of the Organization.

Paragraph 20 sets forth different funding requirements for auxiliary seismic stations than for the other sensors, as described in paragraph 19 above. Auxiliary seismic stations provide data on request from the IDC, whereas the primary seismic stations provide continuous data to the IDC. These stations are discussed in more detail in analysis of Part I of the Protocol to the Treaty.

Paragraph 20 provides that for auxiliary seismic network stations specified in Table 1-B of Annex 1 to the Protocol, the Organization, as specified in agreements or arrangements pursuant to Part I, paragraph 4 of the Protocol, shall meet the costs only of:

(b) Authenticating data from such stations;

(c) Upgrading stations to the required technical standard, unless the state responsible for such facilities meets these costs itself;

(d) If necessary, establishing new stations for the purposes of this Treaty where no appropriate facilities currently exist, unless the state responsible for such facilities meets these costs itself, and

(e) Any other costs related to the provision of data required by the Organization as specified in the relevant operational manuals.

Paragraph 21 provides that the Organization shall meet the cost of provision to each State Party of its requested selection from the standard range of IDC reporting products and services, as specified in Part I, Section F of the Protocol (which addresses the IDC functions, including the IDC standard products and services to States Parties). However, the costs of preparation and transmission of any additional data or products shall be met by the requesting State Party.

Paragraph 22 provides for compensation to States Parties for certain "in kind" contributions. A State Party that is meeting the costs of establishing new IMS facilities and upgrading existing facilities on its own territory or elsewhere may be compensated by an appropriate reduction in its assessed financial contribution to the Organization. Such a reduction may not exceed 50 percent of the annual assessed contribution of a State Party, but may be spread over successive years. A State Party may share such a reduction with another State Party by agreement or arrangement between themselves and with the concurrence of the Executive Council. Paragraph 22 further provides that the agreement or arrangements referred to in this paragraph shall be approved in accordance with paragraphs 26 (h) and 38 (i) of Article II. Paragraph 26 (h) of Article II, provides that the Conference shall consider and approve at its initial session any draft agreements, arrangements, provisions, procedures, operational manuals, guidelines and any other documents developed and recommended by the Preparatory Commission. Paragraph 38 (i) provides that the Executive Council shall approve and supervise the operation of agreements or arrangements relating to the implementation of verification activities with States Parties and other states.

The provision allowing for compensation for these types of national contributions to the IMS is intended to help ensure that the U.S. does not pay more than its fair share of building an effective international monitoring system and facilitate acceptance by other States of U.S. involvement with installment and operation of sensors that the U.S. requires for national purposes.

Changes to the International Monitoring System

Paragraphs 23 through 25 address changes to the IMS. Paragraph 23 provides that the addition or deletion of a monitoring technology such as referred to in paragraph 11 shall, when agreed, be incorporated into the Treaty and the Protocol pursuant to paragraphs 1 to 6 of Article VII, which detail the procedures for amendments. Adoption of an amendment requires a positive vote at an Amendment Conference of a majority of the States Parties with no State Party's casting a negative vote, and acceptance by all those states that cast a positive vote at the Amendment Conference in the form of the deposit of an instrument of ratification.

Paragraph 24 lists those changes to the IMS that, subject to the agreement of those states directly affected, may be incorporated into the Treaty pursuant to the simplified procedures outlined in Article VII, paragraphs 7 and 8. Such changes, considered to be of an administrative or technical nature, need not be subjected to the formal amendment process of the Treaty, whereby each State Party must give its approval and deposit its instruments of ratification or acceptance.

Paragraph 24 of Article IV provides that changes to the IMS that are of an administrative and technical nature are as follows:

(b) changes to other details for particular facilities as reflected in the Tables of Annex 1 to the Protocol (including, inter alia, the state responsible for the facility; location; name of facility; type of facility; and the attribution of facilities between the primary and auxiliary seismic networks.)

The paragraph further provides that if the Executive Council recommends, pursuant to the simplified procedure for adopting changes established in paragraph 8(d) of Article VII, that such changes be adopted, it shall as a rule also recommend, pursuant to paragraph 8(g) of Article VII, that such changes enter into force upon notification by the Director-General of their approval. Paragraph 8(g) provides that such changes that have been approved shall enter into force 180 days after the date of notification of their approval by the Director-General; however, paragraph 8(g) recognizes that another time for entry into force for changes pursuant to paragraph 7 of Article VII can be agreed.

Paragraph 25 provides that the Director-General, in submitting to the Executive Council and States Parties information and evaluation in accordance with paragraph 8(b) of Article VII, must include particular information in the case of any proposal made pursuant to paragraph 24 of this Article. Paragraph 8(b) of Article VII, provides that no later than 60 days after receipt of proposed changes to the Treaty of an administrative or technical nature, the Director-General shall evaluate the proposal to determine all its possible consequences for the provisions of the Treaty and its implementation and shall communicate any such information to all States Parties and the Executive Council. In the case of such changes to the IMS, this information shall include:

(b) A statement on the administrative and financial impact of the proposal; and

Temporary Arrangements

Paragraph 26 of Article IV addresses temporary arrangements for the IMS that may be necessary. In cases of significant or irretrievable breakdown of a monitoring facility specified in the Tables of Annex 1 to the Protocol (which list the seismic stations, radionuclide stations, hydroacoustic stations and infrasound stations) or in order to compensate for other temporary reductions of monitoring coverage, the Director-General shall, in consultation and agreement with those states directly affected, and with the approval of the Executive Council, initiate temporary arrangements of no more than one year's duration, renewable if necessary by agreement of the Executive Council and of the states directly affected for another year. Limitations on these temporary arrangements are that such arrangements: shall not cause the number of operational facilities of the IMS to exceed the number specified for the relevant network; shall meet as far as possible the technical and operational requirements specified in the operational manual for the relevant network; and shall be conducted within the budget of the Organization. In addition, the Director-General shall take steps to rectify the situation and make proposals for its permanent resolution. Lastly, the Director-General shall notify all States Parties of any decision taken pursuant to this paragraph.

Cooperating National Facilities

Paragraphs 27 and 28 of Article IV address situations in which a State Party may wish to provide the Organization with data from monitoring stations that are not part of the IMS. Paragraph 27 provides that States Parties may establish cooperative arrangements with the Organization in order to make available to the IDC supplementary data from national monitoring stations that are not formally part of the IMS.

Paragraph 28 provides the mechanism for the establishment of such cooperative arrangements. That paragraph provides that such arrangements may be established in the following way:

(b) The Technical Secretariat shall maintain a current list of cooperating national facilities and shall distribute it to all States Parties; and

(c) The IDC shall call upon data from cooperating national facilities, if so requested by a State Party, for the purposes of facilitating consultation and clarification and the consideration of on-site inspection requests, data transmission costs being borne by that State Party. This subparagraph makes clear that once a cooperating arrangement has been established, the IDC may request data from that facility as needed for the above-noted purposes of the Treaty. This subparagraph also makes clear that when the IDC does so call upon these national facilities, the costs for transmitting such data will be borne by the State Party that requested the data.

Lastly, this paragraph provides that the conditions under which supplementary data from such facilities are made available, and under which the IDC may request further or expedited reporting, or clarifications, shall be elaborated in the operational manual for the respective monitoring network.

C. Consultation and Clarification

Section C of Article IV consists of five paragraphs. This Section sets forth procedures for consultation and clarification by States Parties about possible non-compliance with the basic obligations of the Treaty. The consultation and clarification process is intended to provide States Parties a relatively non-confrontational and inexpensive means that may resolve concerns regarding compliance with the Treaty.

Paragraph 29 of this Article provides that without prejudice to the right of any State Party at any time to request an on-site inspection, States Parties should, whenever possible, first make every effort to clarify and resolve, among themselves or with or through the Organization, any matter that may cause concern about possible non-compliance with the basic obligations of the Treaty. It is clear from the language "without prejudice to the right to request an on-site inspection" that the consultation and clarification process is separate from that of on-site inspections. States Parties are not required first to attempt to resolve concerns through consultation before requesting an on-site inspection or to pursue consultations at any point during the Executive Council deliberations or the Technical Secretariat's conduct of an OSI. However, States Parties are encouraged to engage in consultations whenever possible.

Paragraph 30 of Article IV of the Treaty provides that a State Party that receives a request pursuant to paragraph 29 directly from another State Party shall provide the clarification to the requesting State Party as soon as possible, but in any case no later than 48 hours after the request. The requesting and requested States Parties may keep the Executive Council and the Director-General informed of the request and the response.

Paragraph 31 of this Section gives each State Party the right to request assistance from the Director-General in obtaining clarification of a situation involving compliance with the Treaty. Specifically, this paragraph gives a State Party the right to request the Director-General to assist in clarifying any matter that may cause concern about possible non-compliance with the basic obligations of the Treaty. The Director-General shall provide appropriate information in the possession of the Technical Secretariat relevant to such a concern. The paragraph further provides that the Director-General shall inform the Executive Council of the request and of the information provided in response, if so requested by the requesting State Party.

Paragraph 32 of Article IV gives each State Party the further right to request that the Executive Council obtain clarification from another State Party on any matter that may cause concern about possible non-compliance with the basic obligations of the Treaty. The procedures for this are set forth in the following four subparagraphs.

Subparagraph (a) requires the Executive Council to forward the request for clarification to the requested State Party through the Director-General no later than 24 hours after receipt of the request.

Subparagraph (b) requires the requested State Party to provide the clarification to the Executive Council as soon as possible, but in any case no later than 48 hours after receipt of the request.

Subparagraph (c) requires the Executive Council to take note of the clarification and forward it to the requesting State Party no later than 24 hours after receipt of the request.

Subparagraph (d) gives the requesting State Party, if it deems the clarification to be inadequate, the right to request that the Executive Council obtain a further clarification from the requested State Party.

Paragraph 32 further provides that if a request for clarification is made by a State Party pursuant to this paragraph, the Executive Council will be under an obligation to inform without delay all other States Parties about such a request, as well as any response provided by the requested State Party.

Paragraph 33 of Article IV gives the Executive Council and other States Parties an opportunity to participate in a request for clarification that has not been satisfactorily addressed by the requested State Party. Specifically, paragraph 33 provides that if the requesting State Party considers the clarification obtained under paragraph 32 (d) to be unsatisfactory, it shall have the right to request a meeting of the Executive Council in which States Parties involved that are not members of the Executive Council shall be entitled to take part. At such a meeting, the Executive Council shall consider the matter and may recommend any measure in accordance with Article V (which addresses measures to redress a situation and ensure compliance, including sanctions).

D. On-site Inspections

Section D of Article IV, consisting of paragraphs 34 through 67, provides the basis for on-site inspections to assist in verifying compliance with the Treaty and contains provisions necessary for the establishment of the on-site inspection regime of the Organization. Section D is further divided into eight parts, as follows: "Request for an On-Site Inspection," paragraphs 34 through 38; "Follow-up After Submission of an On-Site Inspection Request," paragraphs 39 through 45; "Executive Council Decisions," paragraphs 46 through 52; "Follow-up After Executive Council Approval of an On-Site Inspection," paragraphs 53 through 55; "The Conduct of an On-Site Inspection," paragraphs 56 through 60; "Observer," paragraph 61; "Reports of an On-Site Inspection," paragraphs 62 through 66; and, "Frivolous or Abusive On-Site Inspection Requests," paragraph 67.

Request for an On-Site Inspection

This part of Section D, Article IV, consisting of paragraphs 34 through 38, establishes the right to request an inspection and sets forth other basic matters concerning a request for an on-site inspection.

Paragraph 34 of Section D of Article IV gives each State Party the right to request an on-site inspection, in accordance with the provisions of this Article and Part II of the Protocol, in the territory or in any other place under the jurisdiction or control of any State Party, or in any area beyond the jurisdiction or control of any state. Note that the inclusion of a right to request an inspection of areas beyond the jurisdiction or control of any state is different from inspection rights in other treaties, such as the Chemical Weapons Convention, and is a recognition by the negotiators that a nuclear explosion might be carried out in violation of the Treaty on the high seas or in other areas beyond a state's jurisdiction or control.

Paragraph 35 of Section D of Article IV sets forth the purpose of an on-site inspection. Specifically, this paragraph states that the sole purpose of an on-site inspection shall be to clarify whether a nuclear weapon test explosion or any other nuclear explosion has been carried out in violation of Article I and, to the extent possible, to gather any facts which might assist in identifying any possible violator. This paragraph indicates that the purpose of an inspection is to discover facts on the basis of which each State Party could determine whether the basic obligations of the Treaty had been violated, and the identity of the State Party that had committed the violation.

Paragraph 36 of Section D of Article IV states that the requesting State Party shall be obligated to keep the on-site inspection request within the scope of the Treaty and to provide in the request information in accordance with paragraph 37. The paragraph also states that the requesting State Party shall refrain from unfounded or abusive inspection requests.

Paragraph 37 of Section D of Article IV states that the on-site inspection request shall be based on information collected by the International Monitoring System, on any relevant technical information obtained by national technical means of verification in a manner consistent with generally recognized principles of international law or on a combination thereof The paragraph also states that the request shall contain information pursuant to paragraph 41 of Part II of the Protocol. During the negotiations some states opposed permitting data obtained by national technical means to be used as the basis for a request for an on-site inspection. The United States, and several other states, argued strongly that data obtained by national technical means was both appropriate and valuable for verifying Treaty compliance in general, and as a basis for requests for on-site inspections in particular. Consequently, the United States supported the wording in paragraph 37 (and all delegations ultimately concurred), which explicitly recognizes the legitimacy of data derived from national technical means in a manner consistent with generally recognized principles of international law as a basis for a request for an on-site inspection.

Note that paragraph 41 of the Protocol requires, inter alia, that the estimated location of the event triggering the request, and the proposed boundaries of the area to be inspected, be provided as part of the request.

Paragraph 38 of Section D of Article IV states that the requesting State Party shall present the on-site inspection request to the Executive Council and at the same time to the Director-General for the latter to begin immediate processing. Immediate processing by the Director-General is necessary for the timely commencement of the follow-up activities set forth in paragraphs 39 through 45 in regard to approval or non-approval of a request.

Follow-up After Submission of an On-Site Inspection Request

This second part of Section D, consisting of paragraphs 39 through 45, sets forth procedures and activities to be undertaken after receipt of an on-site inspection request.

Paragraph 39 of Section D of Article IV states that the Executive Council shall begin its consideration immediately upon receipt of the on-site inspection request. As the Executive Council has only 96 hours, pursuant to paragraph 46, in which to take a decision on the request, it is necessary for its consideration to commence immediately upon receipt.

Paragraph 40 of Section D of Article IV states that the Director-General, after receiving the onsite inspection request, shall acknowledge receipt of the request to the requesting State Party within two hours and communicate the request to the State Party sought to be inspected within six hours. This paragraph also states that the Director-General shall ascertain that the request meets the requirements specified in paragraph 41 of Part II of the Protocol, and, if necessary, shall assist the requesting State Party in filing the request accordingly, and shall communicate the request to the Executive Council and to all other States Parties within 24 hours.

This paragraph requires prompt, expeditious handling of a request by the Director-General. If the request does not meet the requirements of paragraph 41 of the Protocol, the Director-General must assist the requesting State Party in making the necessary changes in time to communicate the request to all other States Parties within 24 hours. Briefly, paragraph 41 of the Protocol requires specification of the approximate location of the event, the proposed boundaries of the area to be inspected, the name of the State Party or States Parties to be inspected, the probable environment of the event, the estimated time of the event, all data upon which the request is based, and, if applicable, personal details of the proposed observer and the results of a consultation and clarification process (see the discussion of paragraph 41 of the Protocol, below.) If, however, for some reason a non-conforming request cannot be changed to meet the requirements in time, then the Director-General would not be required to begin processing the request until the requirements are met. Note, however, that as paragraph 38 requires that the requesting State Party also send the request to the Executive Council, the Director-General would need to keep the Executive Council informed as to the status of the efforts to conform the request to requirements.

Paragraph 41 of Section D of Article IV states that when the on-site inspection request fulfils the requirements, the Technical Secretariat shall begin preparations for the on-site inspection without delay. This reflects the practical requirement for an immediate commencement of preparations if timely arrival of the inspection team at the inspection area is to be achieved. However, this paragraph also means that the commencement of preparations is subject to the receipt of a request that meets the requirements of paragraph 41 of the Protocol, thus ensuring that a partial or incomplete request does not act as a trigger for preparations. The 96-hour period in which the Executive Council must decide on the request is not, however, affected by any of these activities. That period begins as soon as the Executive Council receives the original request for inspection.

Paragraph 42 of Section D of Article IV states that the Director-General, upon receipt of an on-site inspection request referring to an inspection area under the jurisdiction or control of a State Party, shall immediately seek clarification from the State Party sought to be inspected in order to clarify and resolve the concern raised in the request.

This paragraph reflects a compromise between states that wanted a mandatory process of consultation, clarification and technical evaluation (the result of which would have then become a report by the Director-General to the Executive Council which would serve as the basis for the Executive Council's decision on the inspection request), and other states that wanted a consultation and clarification process conducted in parallel to the Executive Council's consideration of the request so as not to interfere with on-site inspection time lines. If the Executive Council had to wait for the process to be completed, there would be considerable delay entailed, and a real possibility of preventing potential detection of the shorter-lived phenomena generated by a nuclear explosion. However, consultation, clarification and technical evaluation processes would be very desirable in the achievement of correct decisions by the Executive Council. The compromise reached in this paragraph (and in paragraphs 43 and 44) allows the Executive Council to work towards a decision without first receiving a formal report by the Director-General on the consultation and clarification process, while at the same time it provides that the Executive Council can use any information obtained when it considers and decides on the request.

Paragraph 43 of Section D of Article IV states that a State Party that receives a request for clarification pursuant to paragraph 42 shall provide the Director-General with explanations and with other relevant information available as soon as possible, but no later than 72 hours after receipt of the request for clarification. As mentioned above, this paragraph provides the means to use information from the consultation and clarification process in the Executive Council's decision. Note that the 72-hour time period is set so as to avoid delay (deliberate or otherwise) and allow for use of information during the Executive Council's 96-hour decision deadline under paragraph 46. It also provides an incentive to the State Party from whom the clarification is requested, as a State Party that delayed its response could very well find that the Executive Council had decided to approve a request when a prompt, thorough response might have obviated the need for an inspection.

Paragraph 44 of Section D of Article IV provides that the Director-General, before the Executive Council takes a decision on the on-site inspection request, shall transmit immediately to the Executive Council any additional information available from the International Monitoring System or provided by any State Party on the event specified in the request, including any clarification provided pursuant to paragraphs 42 and 43, as well as any other information from within the Technical Secretariat that the Director-General deems relevant or that is requested by the Executive Council. This paragraph ensures that the Executive Council's consideration of and decision on an on-site inspection request is informed by the most up-to-date data available from the IMS or any other important, relevant information. In addition, of course, any information from the consultation and clarification process shall also be provided by the Director- General.

Paragraph 45 of Section D of Article IV provides that unless the requesting State Party considers the concern raised in the on-site inspection request to be resolved and withdraws the request, the Executive Council shall take a decision on the request in accordance with paragraph 46. This simply permits the withdrawal of a request that is no longer necessary in the view of the requesting State Party because of information from the consultation and clarification process, or for some other reason.

Executive Council Decisions

This third part of Section D, consisting of paragraphs 46 through 52, sets forth the basis for Executive Council decisions with regard to on-site inspection requests.

Paragraph 46 of Section D of Article IV provides that the Executive Council shall take a decision on the on-site inspection request no later than 96 hours after receipt of the request from the requesting State Party. This paragraph also states that the decision to approve the on-site inspection shall be made by at least 30 affirmative votes of members of the Executive Council. Further, this paragraph states that if the Executive Council does not approve the inspection, preparations shall be stopped and no further action on the request shall be taken.

Note that with regard to the 96-hour period, the Treaty text refers to a 96-hour period from receipt of the original request, not from any corrected request that the requesting State Party may be required to submit.

The final version of this paragraph attests to the compromise that underlay the agreed text and allowed the Treaty to be concluded. The paragraph is the result of the resolution of the long disagreement among negotiators concerning the so-called "red-light, green-light" approval process for on-site inspections. Briefly, those states that favored the "red-light" process wanted an inspection request to be approved automatically unless the Executive Council voted against the inspection prior to the expiration of a fixed time-period. States that favored a "green-light" process wanted a vote of the Executive Council (some states sought a two-thirds majority vote) in favor of the inspection before one could proceed. Many variations of these basic concepts were considered and debated. Finally, agreement was reached that 30 affirmative votes of the Executive Council would be required to approve an on-site inspection.

Paragraph 47 of Section D of Article IV requires that no later than 25 days after the approval of the on-site inspection in accordance with paragraph 46, the inspection team shall transmit to the Executive Council, through the Director-General, a progress inspection report. This paragraph also states that the continuation of the inspection shall be considered approved unless the Executive Council, no later than 72 hours after receipt of the progress inspection report, decides by a majority of all its members not to continue the inspection. This paragraph also requires that if the Executive Council decides not to continue the inspection, the inspection shall be terminated, and the inspection team shall leave the inspection area and the territory of the inspected State Party as soon as possible in accordance with Part II, paragraphs 109 and 110 of the Protocol. Note that paragraph 70 of the Protocol provides limitations as to the inspection activities that may be conducted in the first 25 days.

This paragraph, coupled with paragraph 49, provides the basic framework of an inspection process that can be viewed as a potential two-phase operation. The first phase would allow for rapid investigation of a compliance concern. The second phase is for situations in which more needs to be done to gather facts on whether there has been a nuclear weapon test explosion or any other nuclear explosion.

Paragraph 48 of Section D of Article IV provides that, in the course of the on-site inspection, the inspection team may submit to the Executive Council, through the Director-General, a proposal to conduct drilling. The paragraph also states that the Executive Council shall take a decision on such a proposal no later than 72 hours after receipt of the proposal. It also provides that the decision to approve drilling shall be made by a majority of all members of the Executive Council.

This paragraph separates Executive Council consideration of drilling from other considerations of an inspection request. The request for drilling could be made by the team at any time, during any part of an inspection. Paragraph 69(h) of the Protocol indicates that drilling is for the purpose of obtaining radioactive samples.

Paragraph 49 of Section D of Article IV states that the inspection team may request the Executive Council, through the Director-General, to extend the inspection duration by a maximum of 70 days beyond the 60-day time-frame specified in paragraph 4 of Part II of the Protocol, if the inspection team considers such an extension essential to enable it to fulfil its mandate. This paragraph also states that the inspection team shall indicate in its request which of the activities and techniques listed in paragraph 69 of Part II of the Protocol it intends to carry out during the extension period. The paragraph states that the Executive Council shall take a decision on the extension request no later than 72 hours after receipt of the request, and that the decision to approve an extension of the inspection duration shall be made by a majority of all members of the Executive Council. This paragraph provides the basis for an extended phase of an inspection for situations in which continued and potentially more intensive activities would be required to search for evidence that a nuclear explosion has been carried out in violation of Article I.

Paragraph 50 of Section D of Article IV provides that at any time following the approval of the continuation of the on-site inspection in accordance with paragraph 47, the inspection team may submit to the Executive Council, through the Director-General, a recommendation to terminate the inspection. The paragraph states that such a recommendation shall be considered approved unless the Executive Council, no later than 72 hours after receipt of the recommendation, decides by a two-thirds majority of all its members not to approve the termination of the inspection. This paragraph then states that in case of termination of the inspection, the inspection team shall leave the inspection area and the territory of the inspected State Party as soon as possible in accordance with paragraphs 109 and 110 of Part II of the Protocol. If the inspection team recommends termination, then the inspection will be terminated absent a vote by two-thirds of the Executive Council that, despite the recommendation of the inspection team, it should be continued.

Paragraph 51 of Section D of Article IV provides that the requesting State Party and the State Party sought to be inspected may participate in the deliberations of the Executive Council on the on-site inspection request without voting. It further provides that the requesting State Party and the inspected State Party may also participate without voting in any subsequent deliberations of the Executive Council related to the inspection.

Paragraph 51 ensures that if a State Party that is not a member of the Executive Council makes a request for an on-site inspection, or if a State Party that is not a member of the Executive Council is sought to be inspected, each may participate in the discussion of the request in the Executive Council. This provision ensures that the information on which the request is based may be explained by the requesting State Party itself, and similarly, any argument against the request may be made by the State Party that is the subject of the request. In the absence of such a provision, the only information available to the members of the Executive Council from a requesting State Party or a State Party sought to be inspected that is not a member of the Executive Council would be the information contained in the request itself or the clarification received by the DirectorGeneral. The paragraph makes it clear, however, that while being afforded an opportunity to make its case before the Executive Council, such a non-member of the Executive Council is not given a vote.

Paragraph 52 of Section D of Article IV states that the Director-General shall notify all States Parties within 24 hours about any decision by and reports, proposals, requests and recommendations to the Executive Council pursuant to paragraphs 46 to 50. This paragraph is for the purpose of ensuring that the Director-General provides all States Parties with information regarding on-site inspections.

Follow-up After Executive Council Approval of an On-Site Inspection

The fourth part of Section D, consisting of paragraphs 53 through 55, concerns actions necessary immediately following approval of an on-site inspection request.

Paragraph 53 of Section D of Article IV provides that an on-site inspection approved by the Executive Council shall be conducted without delay by an inspection team designated by the Director-General and in accordance with the provisions of the Treaty and the Protocol. The paragraph also states that the inspection team shall arrive at the point of entry no later than six days following the receipt by the Executive Council of the on-site inspection request from the requesting State Party.

Paragraph 54 of Section D of Article IV provides that the Director-General shall issue an inspection mandate for the conduct of the on-site inspection. It also requires that the inspection mandate shall contain the information specified in paragraph 42 of Part II of the Protocol. This paragraph provides the basis in the Treaty for the Director-General to issue an inspection mandate, while ensuring that it fulfills requirements set forth in the Protocol.

Paragraph 55 of Section D of Article IV provides that the Director-General shall notify the inspected State Party of the inspection no less than 24 hours before the planned arrival of the inspection team at the point of entry, in accordance with paragraph 43 of Part II of the Protocol. This paragraph provides the basis in the Treaty for the notification to the inspected State Party that the inspection team is soon to arrive at the point of entry. The Protocol requires preparations by an inspected State Party (see paragraphs 45-55 of the Protocol.) Note that details such as the time allowed for movement of an inspection team from point of entry to inspection area have been left to the Protocol (see paragraph 54 of the Protocol.) Such notification will enable the inspected State Party to make the necessary preparations to receive the inspection team at the point of entry (particularly if the inspection team is arriving via an unscheduled aircraft), to conduct activities at the point of entry, and to transport the inspection team to the inspection area, in accordance with paragraphs 45-55 and 57 of the Protocol.

The Conduct of an On-Site Inspection

The fifth section of Section D, consisting of paragraphs 56 through 60, establishes basic rules and obligations concerning the conduct of an on-site inspection.

Paragraph 56 of Section D of Article IV provides that each State Party shall permit the Organization to conduct an on-site inspection on its territory or at places under its jurisdiction or control in accordance with the provisions of the Treaty and the Protocol. This paragraph provides a limitation on such inspections by stating that no State Party shall be required to accept simultaneous on-site inspections on its territory or at a place under its jurisdiction or control.

Paragraph 57 of Section D of Article IV, in five subparagraphs, establishes rights and obligations of an inspected State Party. Specifically, paragraph 57 states that, in accordance with the provisions of the Treaty and the Protocol, the inspected State Party shall have:

(b) The right to take measures it deems necessary to protect national security interests and to prevent disclosure of confidential information not related to the purpose of the inspection;

(c) The obligation to provide access within the inspection area for the sole purpose of determining facts relevant to the purpose of the inspection, taking into account subparagraph (b) and any constitutional obligations it may have with regard to proprietary rights or searches and seizures;

(d) The obligation not to invoke this paragraph or Part II, paragraph 88 of the Protocol to conceal any violation of its obligations under Article I; and

(e) The obligation not to impede the ability of the inspection team to move within the inspection area and to carry out inspection activities in accordance with the Treaty and the Protocol.

Paragraph 57 also defines access, in the context of an on-site inspection, to mean both the physical access of the inspection team and the inspection equipment to, and the conduct of inspection activities within, the inspection area. The Treaty recognizes that there could be some cases whereby an inspected State Party might have to take actions necessary to protect sensitive installations, locations, confidential information, buildings, other structures and sites, and to afford Constitutional protections.

Paragraph 57 is designed to strike a balance between the need to provide the inspection team with access to the inspection area in order to fulfill its mandate, and the interests of the inspected State Party in protecting its national security interests and preventing disclosure of confidential information not related to the purpose of the inspection. Thus, while the inspected State Party has the obligation, inter alia, to make every reasonable effort to demonstrate its compliance, to provide access within the inspection area and to refrain from impeding the ability of the inspection team to move within the inspection area, the inspected State Party also has the right, inter alia, to take measures it deems necessary to protect its national security interests and unrelated confidential information.

It is important to note that, pursuant to paragraph 57, the inspected State Party has the right to take into account ". . . any Constitutional obligations it may have with respect to proprietary rights or searches and seizures." This provision specifically recognizes that some States Parties have constitutional constraints on searches of non-governmental property and persons. Accordingly, this provision constitutes acknowledgment that a State Party would not necessarily be in violation of the Treaty if its constitutional processes resulted in limited or delayed access by the inspection team to certain places within the inspection area on the basis of a constitutional prohibition of unreasonable searches and seizures or protection of proprietary rights. Nevertheless, pursuant to paragraph 60 of Article IV, the inspected State Party would be obligated to make every reasonable effort in consultations with the inspection team to demonstrate through alternative means its compliance with the Treaty.

Paragraph 58 of Section D of Article IV requires that an on-site inspection shall be conducted in the least intrusive manner possible, consistent with the efficient and timely accomplishment of the inspection mandate, and in accordance with the procedures set forth in the Protocol. Paragraph 58 also states that wherever possible, the inspection team shall begin with the least intrusive procedures and then proceed to more intrusive procedures only as it deems necessary to collect sufficient information to clarify the concern about possible non-compliance with the Treaty. Finally, this paragraph provides that the inspectors shall seek only the information and data necessary for the purpose of the inspection and shall seek to minimize interference with normal operations of the inspected State Party.

Paragraph 58 is a direct result of the concerns of some states that inspections would be too intrusive and possibly abused for information gathering purposes. Therefore this paragraph provides that the inspections should begin with the least intrusive measures and proceed when necessary to more intrusive measures. Information to be sought is limited to that necessary for the purpose of the inspection, and interference with the inspected State Party is to be minimized. The provisions of the Protocol concerning the conduct of inspections (paragraphs 56-61, 69 and 70 of the Protocol), were also drafted with this concern in mind.

Paragraph 59 of Section D of Article IV requires that the inspected State Party shall assist the inspection team throughout the on-site inspection and facilitate its task. This paragraph imposes a requirement on the inspected State Party to do more than merely permit access; it imposes an affirmative obligation on the inspected State Party to help the inspection team and facilitate its task.

Paragraph 60 of Section D of Article IV provides that if the inspected State Party, acting in accordance with Part II, paragraphs 86 to 96 of the Protocol, restricts access within the inspection area, it shall make every reasonable effort in consultation with the inspection team to demonstrate through alternative means its compliance with the Treaty.

The important principle is that any limitation on access to the inspection area carries with it an accompanying obligation to make every effort through alternative means to demonstrate compliance with the Treaty. This principle is also evident in the Protocol provisions dealing with managed access (see paragraphs 86-96 of the Protocol, in particular paragraph 88(b)).

Observer

The sixth section of Section D, consisting of paragraph 61 only, concerns observers.

Paragraph 61 of Section D of Article IV, in four subparagraphs, provides that with regard to an observer, the following shall apply:

(b) The inspected State Party shall notify its acceptance or non-acceptance of the proposed observer to the Director-General within 12 hours after approval of the on-site inspection by the Executive Council;

(d) The inspected State Party shall, as a rule, accept the proposed observer, but if the inspected State Party exercises a refusal, that fact shall be recorded in the inspection report.

Paragraph 61 further provides that there shall be no more than three observers from an aggregate of requesting States Parties.

Paragraph 61 allows the requesting State Party to send an observer so as to assure itself that the concerns that prompted the request for an inspection are indeed addressed. The inspected State Party can refuse to accept the observer, but the refusal will be recorded in the inspection report. The U.S. view is that the inspected State Party must have reasonable grounds for refusal of a proposed observer and cannot use the 12-hour period provided pursuant to subparagraph (b) to delay initiation of an on-site inspection or to frustrate its purposes. Note that, in the event that more than one State Party submits a request for an on-site inspection, each requesting State Party may send an observer, provided that the total number of observers participating in an inspection does not exceed three. Paragraphs 63-68 of the Protocol provide detailed rules for the observer, including the proviso that the requesting State Party must bear all costs associated with the observer's stay on the territory of the inspected State Party.

Reports of an On-Site Inspection

The seventh part of Section D, consisting of paragraphs 62 through 66, concerns the contents, transmission and review of inspection reports.

Paragraph 62 of Section D of Article IV, in five subparagraphs, provides that inspection reports shall contain:

(b) The factual findings of the inspection team relevant to the purpose of the inspection;

(d) A factual description of the extent of the access granted, including the alternative means provided to the team, during the on-site inspection; and

(e) Any other details relevant to the purpose of the inspection.

In addition, paragraph 62 permits differing observations made by inspectors to be attached to the report.

Paragraph 63 of Section D of Article IV provides that the Director-General shall make draft inspection reports available to the inspected State Party. This paragraph also states that the inspected State Party shall have the right to provide the Director-General within 48 hours with its comments and explanations, and to identify any information and data which, in its view, are not related to the purpose of the inspection and should not be circulated outside the Technical Secretariat. The paragraph requires that the Director-General shall consider the proposals for changes to the draft inspection report made by the inspected State Party and shall wherever possible incorporate them, and that the Director-General shall also annex the comments and explanations provided by the inspected State Party to the inspection report.

Paragraph 63 entitles the inspected State Party to see the draft inspection report in time to make comments and explanations, and identify items that it believes should not be part of the report. The Director-General must consider the proposals for changes made by the inspected State Party and wherever possible incorporate them in the report. However, the use of the qualifier "wherever possible" means that the Director-General is not required to incorporate such comments, for example, if they are considered incorrect or misleading. In any case, the Director-General is required to append the comments of the inspected State Party in an annex.

Paragraph 64 of Section D of Article TV requires the Director-General to transmit the inspection report promptly to the requesting State Party, the inspected State Party, the Executive Council and to all other States Parties. This paragraph also states that the Director-General shall further transmit promptly to the Executive Council and to all other States Parties any results of sample analysis in designated laboratories in accordance with Part II, paragraph 104 of the Protocol, relevant data from the International Monitoring System, the assessments of the requesting and inspected States Parties, as well as any other information that the Director-General deems relevant. This paragraph also provides that in the case of the progress inspection report referred to in paragraph 47, the Director-General shall transmit the report to the Executive Council within the time-frame specified in that paragraph.

This paragraph authorizes and instructs the Director-General to transmit the inspection report, the results of sample analysis, IMS data, assessments and other information to all other States Parties. This paragraph reflects the desire of the negotiators that the inspection process be "transparent," -- open and available to all States Parties. Note that the Technical Secretariat is not required to prepare a technical evaluation of the report.

Paragraph 65 of Section D of Article IV provides that the Executive Council, in accordance with its powers and functions, shall review the inspection report and any material provided pursuant to paragraph 64, and shall address any concerns as to:

(b) Whether the right to request an on-site inspection has been abused.

Note that the inspection report will not include recommendations or statements concerning a State Party's compliance with the basic obligations of the Treaty. Compliance judgements remain the prerogative of each State Party.

Paragraph 66 of Section D of Article IV states that if the Executive Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 65, it shall take the appropriate measures in accordance with Article V. This means that if the Executive Council concludes that further action is necessary, it must either make recommendations to the Conference, pursuant to paragraph 41 of Article II, regarding measures to redress the situation and to ensure compliance in accordance with Article V (Measures to Redress a Situation and to Ensure Compliance, Including Sanctions,) or if the case is urgent, it may take action itself, pursuant to paragraph 4 of Article V, and bring the issue, including the relevant information and conclusions, e.g., the inspection report, to the attention of the United Nations.

Frivolous or Abusive On-Site Inspection Requests

The eighth part of Section D, consisting of paragraph 67 only, concerns measures to redress frivolous or abusive inspection requests.

Paragraph 67 of Section D of Article IV provides that if the Executive Council does not approve the on-site inspection on the basis that the on-site inspection request is frivolous or abusive, or if the inspection is terminated for the same reasons, the Executive Council shall consider and decide on whether to implement appropriate measures to redress the situation, including the following:

(b) Suspending the right of the requesting State Party to request an on-site inspection for a period of time, as determined by the Executive Council; and

Paragraph 67 is intended to discourage frivolous or abusive inspection requests. Note that the Executive Council has the power to implement the measures itself, and does not need to seek the approval of the Conference before imposing these sanctions.

E. Confidence-Building Measures

Section E of Article IV consists of one paragraph, which concerns confidence-building measures.

Paragraph 68 of Section E, Article IV of the Treaty provides that in order to:

(b) Assist in the calibration of the stations that are part of the component networks of the International Monitoring System,

each State Party undertakes to cooperate with the Organization and with other States Parties in implementing relevant measures as set out in Part III of the Protocol.

The confidence-building measures that are provided in Part III of the Protocol are a number of voluntary measures that involve notification of chemical explosions of 300 metric tons or greater, information regarding such chemical explosions, and visits of representatives of the Technical Secretariat or of other States Parties to specified sites.