Part II of the Protocol to the Comprehensive Nuclear Test-Ban Treaty is titled "On-Site Inspections." It consists of 110 paragraphs divided into five sections as follows: Section A, titled "General Provisions," consists of paragraphs 1-13; Section B, titled "Standing Arrangements," consists of paragraphs 14-40; Section C, titled "On-Site Inspection Request, Inspection Mandate and Notification of Inspection," consists of paragraphs 41-44; Section D, titled "Pre-Inspection Activities," consists of paragraphs 45-55; and Section E, titled "Conduct of Inspections," consists of paragraphs 56-110. This Part of the Protocol sets forth the detailed procedures for the implementation of on-site inspections that are earned out in accordance with the provisions for on-site inspections established in Article IV of the Treaty.

A. General Provisions

This first section of Part II of the Protocol, consisting of 13 paragraphs, sets forth provisions of a general nature that apply to on-site inspections. Paragraph 1 of this Section provides that the procedures of Part II of the Protocol shall be implemented pursuant to the provisions for on-site inspections set out in Article IV of the Treaty, which is implemented by this Part of the Protocol.

Paragraph 2 of Section A provides that the on-site inspection shall be carried out in the area where the event that triggered the on-site inspection request occurred.

Paragraph 3 of Section A provides that the area of an on-site inspection shall be continuous and its size shall not exceed 1000 square kilometers, and that there shall be no linear distance greater than 50 kilometers in any direction. This paragraph precludes the use of a single inspection to inspect separated areas and prevents highly unusual configurations of the inspected area by requiring that no linear distance be greater than 50 kilometers. For example, an inspection request for an area one kilometer wide by one thousand kilometers long would not be permitted.

Paragraph 4 of Section A provides a time limitation for the duration of an inspection. Once an inspection has been approved in accordance with Article IV, paragraph 46, it cannot exceed 60 days, unless extended by a maximum of 70 days in accordance with Article IV, paragraph 49. Therefore, the maximum time for the duration of an inspection, if extended, is 130 days.

Paragraph 5 of Section A provides that if an inspection area extends to areas under the control of more than one State Party, the provisions for on-site inspections shall apply, as appropriate, to each of the States Parties to which the inspection area extends.

Paragraph 6 of Section A delineates the respective rights and obligations of States Parties in the case of an inspection of an area under the jurisdiction or control of an inspected State Party located on the territory of another State Party or where access from the point of entry to the inspection area requires transit through the territory of another State Party. Specifically, this paragraph states that in such cases, the inspected State Party shall exercise the rights and fulfill the obligations in accordance with this Protocol. This means that the inspected State Party has the burden of responsibility for inspections in areas under its control even where the area is on the territory of another State Party. The paragraph also requires the State Party on whose territory the inspection takes place to facilitate the inspection and provide necessary support to enable the inspection team to carry out its tasks in a timely and effective manner. Finally, this paragraph states that States Parties through whose territory transit is required to reach the inspection area shall facilitate such transit.

Paragraph 7 of Section A sets forth the rights and obligations of the inspected State Party in the case of an inspection of an area under the jurisdiction or control of the inspected State Party but that is located on the territory of a State that is not a Party to the Treaty. Specifically, this paragraph states that in such cases, the inspected State Party shall take all necessary measures to ensure that the inspection can be carried out in accordance with this Protocol. This paragraph further states that a State Party that has under its jurisdiction or control one or more areas on the territory of a State not Party to the Treaty shall take all necessary measures to ensure acceptance by the territorial state of inspectors and inspection assistants designated to the State Party, and if the inspected State Party is unable to ensure access, it shall demonstrate that it took all necessary measures to ensure access.

The purpose of paragraph 7 is to provide for the fact that the legal reach of the Treaty on the territory of a state that is not a Party to the Treaty is limited by that state's sovereign rights. Accordingly, a State Party legally may not be able to comply fully with its obligations with regard to inspections where the consent of a territorial state that is not a Party to the Treaty is necessary in order to provide access for an inspection team. Therefore, in such a situation a State Party is required to do everything possible to allow the inspection to take place. Note that the negotiators generally understood paragraph 7 to apply to such things as military bases or other government owned facilities under a State Party's jurisdiction or control but on the territory of another state, but not to facilities or areas owned by private companies, even if the companies are incorporated by the State Party.

Paragraph 8 of Section A sets forth the rights and obligations of a State Party in the cases where the inspection area is located on the territory of the State Party but is under the jurisdiction or control of a state that is not a Party to the Treaty, i.e. the opposite situation from paragraph 7. Specifically, paragraph 8 states that in cases where the inspected area is located on the territory of a State Party, but in a place under the jurisdiction or control of a state not Party to the Treaty, the State Party shall take all necessary measures that would be required of an inspected State Party and a State Party on whose territory the inspection area is located, without prejudice to the rules and practices of international law, to ensure that on-site inspections can be carried out in accordance with the provisions of this Protocol. This means that even though the State Party on whose territory the inspection area is located is not the inspected State Party, it nevertheless has the same obligations as an inspected State Party. For example, if consent is given by the non-State Party in control of the inspected area for an inspection, the State Party must assist the inspection team in conducting the inspection on its territory. In addition, the State Party must fulfill the obligations of a territorial State Party, e.g., it must allow the inspection team to transit its territory.

Paragraph 8 further states that if the State Party is unable to ensure access to the inspection area, it shall demonstrate that it took all necessary measures to ensure access. Paragraph 8 specifically provides that both obligations to take all necessary measures to ensure that an inspection can be carried out, and to ensure access to an inspection area, are to be without prejudice to the rules and practices of international law. This proviso was a recognition by the negotiators that in some cases where a non-State Party has valid jurisdiction and control under existing international agreements, the conduct of an inspection could be affected, and an assurance to States Parties that the necessary measures obligation does not supersede other valid international obligations.

Finally, with regard to on-site inspections, in each of the cases dealt with in paragraphs 6 through 8, the State Party remains under the obligation to make every reasonable effort to demonstrate compliance (subparagraph 57(a) and paragraph 60 of Article IV), and so must still take steps not involving actual inspection to demonstrate its compliance when access is restricted, recognizing that the final decision on any access rests with the inspected Party.

Paragraphs 9 and 10 of Section A provide general principles for establishing the size and composition of inspection teams. Paragraph 9 indicates that the inspection team shall be kept to the minimum necessary to properly fulfill the inspection mandate, with a maximum number of 40, except during the conduct of drilling, when more could be necessary. Further, paragraph 9 provides that no national of the requesting, or inspected, State Party shall be a member of the inspection team. This is to help insure objectivity of inspections, and to avoid even the appearance of favoritism towards either the requesting or inspected state.

Paragraph 10 provides that the Director-General shall determine the actual size of any particular inspection team and select its members from the list of inspectors (see paragraphs 15 and 18 of the Protocol for procedures for nomination and acceptance of inspectors) taking into account the circumstances of each request for an inspection.

Paragraph 11 of Section A requires the inspected State Party to provide for or arrange for the amenities necessary for the inspection team such as communication means, interpretation services, transportation, working space, lodging, meals and medical care. Note that this list is illustrative, not exhaustive.

Paragraph 12 of Section A provides that the inspected State Party shall be reimbursed by the CTBT Organization for all expenses, including those mentioned in paragraphs 11 and 49 of the Protocol (paragraph 49 concerns aircraft of the inspection team), related to the stay and functional activities of the inspection team on the territory of the inspected State Party. This paragraph provides that such reimbursement shall be paid in a reasonably short period of time after the conclusion of the inspection. The reasonably short time frame addresses the concerns of some that too great a financial burden could be incurred by poorer states, which could adversely affect conduct of inspections unless reimbursement was reasonably prompt. Again, note that the expenses are not limited to those mentioned in paragraphs 11 and 49.

Paragraph 13 of Section A provides that procedures for implementation of on-site inspections shall be detailed in the Operational Manual for On-Site Inspections. On a case-by-case basis, the U.S. will determine how most effectively to apply the managed access provisions set forth in the Treaty to protect national security interests and to prevent the disclosure of confidential information not related to the purpose of the inspection.

Paragraph 15 of the Text on the Establishment of a Preparatory Commission directs the Preparatory Commission to "make all necessary preparations... for the support of on-site inspections from the entry into force of the Treaty," including developing and preparing "an operational manual containing all appropriate legal, technical and administrative procedures." Pursuant to paragraph 26(h) of Article II of the Treaty, the proposed operational manual will be submitted at the initial session of the Conference of the States Parties for its consideration and approval. In the Protocol, the Operational Manual for On-Site Inspections is referred to in paragraphs 25 (training), 36 (equipment), 85 (overflights), 101 and 102 (sample analysis).

B. Standing Arrangements

The second section of Part II of the Protocol, consisting of paragraphs 14-40, sets forth standing arrangements that apply to on-site inspections. This section is itself divided into five parts, as follows: "Designation of Inspectors and Inspection Assistants," paragraphs 14-25; "Privileges and Immunities," paragraphs 26-31; "Points of Entry, " paragraphs 32-34; "Arrangements for Use of Non-Scheduled Aircraft," paragraph 35; and "Approved Inspection Equipment," paragraphs 36-40.

The first part of Section B is titled "Designation of Inspectors and Inspection Assistants." Paragraph 14 provides that an inspection team may consist of inspectors and inspection assistants, that an on-site inspection shall only be carried out by qualified inspectors assisted by inspection assistants and that both must be specially designated. The procedures for designation and approval of inspectors and inspection assistants are discussed below. This paragraph mentions technical and administrative personnel, aircrew and interpreters as non-exclusive examples of inspection assistants.

Paragraph 15 of Section B provides that inspectors and inspection assistants shall be nominated for designation by States Parties on the basis of their expertise and experience relevant to the purpose and functions of on-site inspections. The purpose of this paragraph is to provide that inspectors and inspection assistants shall be nominated on the basis of their qualifications. This paragraph specifically states that approval of such nominees shall be in advance by the States Parties in accordance with paragraph 18 of the Protocol.

Paragraphs 16 and 17 of Section B set forth the means by which State Parties and the Technical Secretariat propose persons for designation as inspectors and inspection assistants. Paragraph 16 applies to nominees of each State Party. Specifically, each State Party, within 30 days after the Treaty enters into force for that State Party, shall notify the Director General of the names, dates of birth, sex, ranks, qualifications and professional experience, of persons proposed by that State Party as inspectors and inspection assistants.

Paragraph 17 of Section B provides that no later than 60 days after entry into force of the Treaty itself (see the discussion of Article XIV of the Treaty) the Technical Secretariat shall communicate in writing to all States Parties the initial list of individuals and their qualifications proposed for designation as inspectors and inspection assistants by the Director-General and the States Parties.

Paragraph 18 of Section B provides the means for the approval of inspectors and inspection assistants, and provides each State Party an opportunity to disapprove specific inspectors or inspection assistants with regard to inspections on its territory or in any other place under its jurisdiction or control. Each State Party is also specifically obligated to acknowledge immediately receipt of the list. Approval is automatic unless a State Party declares its non-acceptance in writing no later than 30 days after that state acknowledges receipt of the list. Second, regarding disapproval, each State Party, at the time of initial designation, has the right to bar specific inspectors or inspection assistants from participating in any inspections of that particular State Party. This would be done by declaration of non-acceptance in writing to the Technical Secretariat within 30 days after acknowledgment of receipt of the list. The State Party may, but is not required to, include the reason for its objection. In case of such non-acceptance, this paragraph provides that the inspector (or assistant) shall not undertake or participate in on-site inspection activities on the territory or in any other place under the jurisdiction or control of the objecting state. Finally, this paragraph requires the Technical Secretariat to confirm immediately receipt of the notification of objection.

Note that rejection of an inspector or inspection assistant by a State Party does not prohibit such individuals from participating in inspections of other States Parties that have not objected to them.

Paragraph 19 of Section B provides for additions and changes to the list of inspectors and inspection assistants. Whenever additions or changes are proposed by either the Director-General or a State Party, they shall be designated in the same manner as the initial list. A proposal by a new State Party of its nominees would constitute a change or addition to the list and thus fall under this paragraph. This paragraph also requires each State Party to notify the Technical Secretariat when a previously designated individual can no longer fulfill the duties of an inspector or inspection assistant. This means that in addition to the death, disability or resignation of an individual, the original nominating state could remove one of its own designees by simply declaring that a particular individual could no longer fulfill the requisite duties.

Paragraph 20 of Section B requires the Technical Secretariat to keep the list of inspectors and assistants up to date and to notify all States Parties of any additions or changes to the list.

Paragraph 21 of Section B allows a State Party requesting an on-site inspection to propose that an individual from the inspector list serve as that State's observer in accordance with Article IV, paragraph 61 of the Treaty. Note that while paragraph 9 of the Protocol provides that no national of the requesting state can be a member of the inspection team, paragraph 21 provides for the possibility of a national of the requesting state who is one of the designated inspectors or inspection assistants serving as an observer for the requesting state. Paragraph 61 (b) of Article IV, however, allows an inspected State Party to refuse to accept a proposed observer within 12 hours after approval of an on-site inspection by the Executive Council.

Paragraph 22 of Section B provides the means for the rejection of an inspector or assistant who has previously been accepted. In essence, this is the provision that allows a State Party to change its mind about the acceptability of specific individuals. However, this right is limited in one respect, that is, once a state has been notified of an inspection then it shall not seek to remove from that inspection any inspectors or assistants named in that particular inspection mandate. Specifically, this paragraph states that, subject to the provisions of paragraph 23, a State Party has the right at any time to object to an inspector or inspection assistant who has already been accepted. (Paragraph 23 is the limitation that applies once a state has been notified of an inspection.)

Paragraph 22 further states that the objecting State Party shall notify the Technical Secretariat of its objection in writing and may include (i.e., this is not required) the reason for the objection. Finally, this paragraph states that such objection shall come into effect 30 days after receipt of the notification by the Technical Secretariat, and that the Technical Secretariat shall immediately confirm receipt of the notification and inform the objecting and nominating States Parties of the date on which the inspector or inspection assistant shall cease to be designated for the objecting State Party.

Paragraph 23 of Section B states that a State Party that has been notified of an inspection shall not seek the removal from the inspection team of any of the inspectors or inspection assistants named in the inspection mandate. The purpose of this paragraph is to prevent a State Party that is about to be inspected from using its right to reject inspectors or inspection assistants from using this right to delay, hinder, or prevent an inspection.

Paragraph 24 of Section B also contains provisions that are designed to prevent potential interference by a State Party with the successful accomplishment of the inspection. The first sentence of paragraph 24 states that the number of inspectors and inspection assistants accepted by a State Party must be sufficient to allow for the availability of appropriate numbers of inspectors and assistants. Thus, this sentence prohibits, without imposing specific numerical requirements, a State Party from using its ability to reject inspectors and assistants to interfere with the ability of the Technical Secretariat to conduct inspections of that state.

The second sentence of paragraph 24 allows the Director-General to refer to the Executive Council any problem caused by non-acceptance of inspectors by a State Party. Specifically, the second sentence states that if, in the opinion of the Director- General, the non-acceptance by a State Party of proposed inspectors or inspection assistants impedes the designation of a sufficient number of inspectors and inspection assistants or otherwise hampers the effective fulfillment of the purposes of an on-site inspection, the Director-General shall refer the issue to the Executive Council. Thus, this sentence provides a mechanism for dealing with the abuse of the right to reject inspectors and inspection assistants.

Paragraph 25 of Section B provides that each inspector included in the list of inspectors and assistants shall receive relevant training that shall be provided by the Technical Secretariat pursuant to procedures to be specified in the Operational Manual for On-Site inspections. The Technical Secretariat shall co-ordinate, with the States Parties, a schedule for this training. Note that inspection assistants are not included in this training requirement.

The next part of Section B is entitled "Privileges and Immunities" and consists of paragraphs 26 through 31. Paragraph 26 of Section B provides that each State Party shall be obliged to issue multiple entry/exit and/or transit visas for inspectors and inspection assistants. Specifically, this paragraph requires that "[f]ollowing acceptance" of the initial list of inspectors and assistants (under paragraph 18) or an altered or changed list of inspectors (under paragraph 19) upon application by an inspector or inspection assistant, each State Party shall be obliged to issue such visas and "other relevant documents to enable each inspector and inspection assistant to enter and to remain on the territory of that State Party for the sole purpose of carrying out inspection activities." This obligation to issue visas is to be carried out "in accordance with its national procedures." However, there is a requirement that the documents be issued no later than 48 hours after the receipt of the application or immediately upon arrival of the inspection team at the point of entry on the territory of that State. The documents shall be valid "for as long as is necessary" to allow the inspectors to remain on the territory of the inspected State "for the sole purpose" of carrying out the inspection activities.

Paragraph 27 of Section B sets forth, in nine subparagraphs, the specific privileges and immunities that are to be accorded members of the inspection team, and the terms and conditions under which they are to be accorded. Specifically, this paragraph states that to exercise their functions effectively, members of the inspection team shall be accorded privileges and immunities as set forth in subparagraphs (a) to (i). This paragraph further states that privileges and immunities shall be granted to members of the inspection team for the sake of the Treaty and not for the personal benefit of the individuals themselves. Finally, this paragraph states that such privileges and immunities shall be accorded to inspectors and inspection assistants for the entire period between arrival on and departure from the territory of the inspected State Party, and thereafter with respect to acts previously performed in the exercise of their official functions.

Except as noted below, these are the same privileges and immunities accorded in other U.S. arms control agreements such as and START. Note also that the Treaty can require only States Parties, not all states, to accord privileges and immunities, and therefore an inspector or assistant inspecting an area under the jurisdiction or control of an inspected State Party on the territory of a State not a Party to the Treaty will not necessarily enjoy diplomatic privileges and immunities with regard to the territorial state that is not a Party to the Treaty.

Subparagraph 27(a) grants the members of the inspection team the inviolability enjoyed by diplomatic agents pursuant to Article 29 of the Vienna Convention on Diplomatic Relations of 18 April 1961. (Article 29 of the Vienna Convention provides that the person of a diplomatic agent shall be inviolable. Article 29 further provides that a diplomatic agent shall not be liable to any form of arrest or detention. Finally, Article 29 provides that the receiving state (i.e. the inspected State Party) shall treat the diplomatic agent with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.)

Subparagraph 27(b) grants the living quarters and office premises occupied by the inspection team carrying out inspection activities pursuant to the Treaty the inviolability and protection accorded to the premises of diplomatic agents pursuant to paragraph 1 of Article 30 of the Vienna Convention on Diplomatic Relations. (Paragraph 1 of Article 30 of the Vienna Convention provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. Paragraph 1 of Article 22 of the Vienna Convention provides that the premises of a mission shall be inviolable and the agents of the receiving state (i.e. the inspected State Party) may not enter them, except with the consent of the head of the mission. Paragraph 2 of Article 22 provides that the receiving state is under an obligation to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. Paragraph 3 of Article 22 provides that the premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.)

Note that unlike other U.S. arms control agreements, such as or START, under the CTBT, even short-term inspectors enjoy inviolable living quarters, i.e. even hotel rooms are protected. This provision accords additional protection to inspectors in potentially hostile situations.

Subparagraph 27(c) grants the papers and correspondence, including records, of the inspection team the inviolability accorded to all papers and correspondence of diplomatic agents pursuant to Article 30, paragraph 2 of the Vienna Convention on Diplomatic Relations. In general, Paragraph 2 of Article 30 of the Vienna Convention provides that the papers, the correspondence, and the property of a diplomatic agent shall enjoy inviolability, except for certain legal actions related to: private immovable property situated in the territory of the receiving state (i.e. the inspected State Party) not held for purposes of the mission; inheritance where the diplomatic agent is involved as executor, administrator, heir or legatee as a private person; or any professional or commercial activity exercised outside of the diplomatic agent's official functions. (Such activities, in any case, are prohibited pursuant to subparagraph 27(i) of Section B.)

Subparagraph 27(c) also grants the inspection team the right to use codes for its communications with the Technical Secretariat.

Subparagraph 27(d) states that samples and approved equipment carried by members of the inspection team shall be inviolable subject to provisions contained in the Treaty, and exempt from all customs duties. Note that paragraphs 97 through 104 of the Protocol contain the general rules regarding samples, while paragraphs 36 through 40 contain the general rules regarding approved equipment. Subparagraph 27(d) also states that hazardous samples shall be transported in accordance with relevant regulations.

Subparagraph 27(e) states that the members of the inspection team shall be accorded the immunities accorded to diplomatic agents pursuant to paragraphs 1, 2 and 3 of Article 31 of the Vienna Convention on Diplomatic Relations. (Paragraph 1 of Article 31 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state (i.e. the inspected State Party) and shall also enjoy immunity from their civil and administrative jurisdiction, except as noted above in the analysis of subparagraph 27(c). Paragraph 2 of Article 31 provides that a diplomatic agent is not obliged to give evidence as a witness. Also, paragraph 3 of Article 31 prohibits most legal actions, except in certain limited cases, as also discussed in the analysis of subparagraph 27(c) above, in regard to Article 30 of the Vienna Convention).

Note that, nonetheless, paragraphs 29 and 30 of the Protocol require members of the inspection team to respect local laws and allow for waiver of immunity for violations.

Subparagraph 27(f) states that the members of the inspection team carrying out prescribed activities pursuant to this Treaty shall be accorded the exemption from dues and taxes accorded to diplomatic agents pursuant to Article 34 of the Vienna Convention on Diplomatic Relations. Article 34 of the Vienna Convention provides that diplomatic agents shall be exempt from all dues and taxes, personal or real, regional or municipal, except for: indirect taxes normally incorporated into the prices of goods or services; real estate taxes and other fees related to property situated in the territory of the receiving state (i.e. the inspected State Party) (unless held for the sending state, (i.e. the Organization) for purposes of the mission); estate taxes, except on personal movable property; charges for specific services rendered; income and capital taxes related to private income and commercial investments in receiving state (i.e. the inspected State Party); and registration, court or record fees, mortgage dues and stamp duty with respect to immovable property, except for the premises of the mission, (i.e. the living quarters and working spaces of the inspection team). Thus, for purposes of the Treaty, the living quarters and working spaces of the inspection team are exempt from all national, regional or municipal dues and taxes.

Subparagraph 27(g) states that the members of the inspection team shall be permitted to bring into the territory of the inspected State Party, without payment of any customs duties or related charges, articles for personal use, with the exception of articles the import or export of which is prohibited by law or controlled by quarantine regulations.

Subparagraph 27(h) states that the members of the inspection team shall be accorded the same currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions.

Subparagraph 27(i) states that the members of the inspection team shall not engage in any professional or commercial activity for personal profit on the territory of the inspected State Party.

Paragraph 28 of Section B sets forth the privileges and immunities to be accorded when the inspection team is in transit. Specifically, this paragraph states that when transiting the territory of States Parties other than the inspected State Party, the members of the inspection team shall be accorded the privileges and immunities enjoyed by diplomatic agents pursuant to paragraph 1 of Article 40 of the Vienna Convention on Diplomatic Relations. (Paragraph 1 of Article 40 of the Vienna Convention provides that if a diplomatic agent passes through or is in the territory of a third state, which has granted the inspector a passport visa if such visa was necessary, while proceeding to take up or to return to the inspector's post, or when returning to the inspector's own country, the third state shall accord the inspector inviolability and such other immunities as may be required to ensure the inspector's transit or return, which shall also apply to family members who enjoy privileges or immunities who are accompanying the diplomatic agent, or traveling separately to join the agent or to return to their country.)

Paragraph 28 also states that papers and correspondence, including records, and samples and approved equipment, carried by members of the inspection team, shall be accorded the privileges and immunities set forth in subparagraphs 27 (c) and (d), i.e. inviolability. Approved equipment is core equipment for inspection activities and auxiliary equipment necessary for the effective and timely conduct of inspections. (See paragraphs 36-40 of the Protocol in regard to approved equipment.)

Paragraph 29 of Section B provides for handling of possible abuses of privileges and immunities. Specifically, this paragraph states that without prejudice to their privileges and immunities the members of the inspection team shall be obliged to respect the laws and regulations of the inspected State Party and, to the extent that is consistent with the inspection mandate, shall be obliged not to interfere in the internal affairs of that state. This paragraph further states that if the inspected State Party considers that there has been an abuse of privileges and immunities specified in this Protocol, consultations shall be held between the State Party and the Director-General to determine whether such an abuse has occurred and, if so determined, to prevent a repetition of such an abuse.

Paragraph 30 of Section B allows for waiver of the privileges and immunities of the members of the inspection team by the Director-General when members have abused their privileges and immunities. Specifically, this paragraph states that the immunity from jurisdiction of members of the inspection team may be waived by the Director-General in those cases when the Director-General is of the opinion that immunity would impede the course of justice and that it can be waived without prejudice to the implementation of the provisions of the Treaty. This paragraph further states that waiver must always be express.

Paragraph 31 of Section B states that observers shall be accorded the same privileges and immunities accorded to members of the inspection team pursuant to this section, except for those accorded pursuant to subparagraph 27(d). Subparagraph 27(d) gives inviolability to samples and approved equipment. This exception prevents observers from bringing unauthorized samples or approved equipment to or removing such samples or equipment from an inspection site under the protection of their privileges and immunities. (Other provisions regarding observers are contained in paragraph 61 of Article IV of the Treaty, and paragraphs 61, 63 through 68 of Section B of this Protocol.)

The next part of Section B is titled "Points of Entry" and consists of paragraphs 32 through 34.

Paragraph 32 of Section B requires each State Party to designate points of entry for inspection teams. Specifically, this paragraph requires each State Party to designate points of entry and to supply the required information to the Technical Secretariat within 30 days after the Treaty enters into force for it. This paragraph further states that these points of entry shall be such that the inspection team can reach any inspection area from at least one point of entry within 24 hours. The locations of points of entry shall be provided to all States Parties by the Technical Secretariat. Points of entry may also serve as points of exit, however, this is not required.

Paragraph 33 of Section B provides for changes of points of entry. Specifically, this paragraph permits each State Party to change its points of entry by giving notice of such change to the Technical Secretariat. This paragraph further states that changes shall become effective 30 days after the Technical Secretariat receives such notification to allow appropriate notification to all States Parties.

Paragraph 34 of Section B provides for consultations between the Technical Secretariat and a State Party if timely conduct of inspections would be adversely impacted by factors related to the points of entry. Specifically, this paragraph states that if the Technical Secretariat considers that there are insufficient points of entry for the timely conduct of inspections or that changes to the points of entry proposed by a State Party would hamper such timely conduct of inspections, it shall enter into consultations with the State Party concerned to resolve the problem.

The next part of Section B is titled "Arrangements for Use of Non-Scheduled Aircraft" and consists of paragraph 35. Paragraph 35 provides for the use of non-scheduled aircraft by the inspection team. Specifically, this paragraph states that for inspections where timely travel to the point of entry is not feasible using scheduled commercial flights, an inspection team may utilize non-scheduled aircraft. This paragraph further states that within 30 days after the Treaty enters into force for it, each State Party shall inform the Technical Secretariat of the standing diplomatic clearance number for non-scheduled aircraft transporting an inspection team And equipment necessary for inspection. Finally, this paragraph states that aircraft routings shall be along established international airways that are agreed upon between the State Party and the Technical Secretariat as the basis for such diplomatic clearance.

This paragraph provides for the possibility of using non-scheduled aircraft where timely commercial transport for inspections is not available, such as when commercial transportation is not reliable, is not scheduled at appropriate times, or is unavailable for other reasons. Note that there is no requirement to use non-scheduled aircraft owned by a particular state or entity (such as the Technical Secretariat), and there is no requirement to use any particular, type of non-scheduled aircraft (e.g., a helicopter could be used).

The last part of Section B is titled "Approved Inspection Equipment" and consists of paragraphs 36 through 40. Paragraph 36 of Section B provides that the Conference, at its initial session, shall consider and approve a list of equipment for use during on-site inspections. Each State Party may submit proposals for the inclusion of equipment in the list. Specifications for the use of the equipment will be set forth in the Operational Manual for On-Site Inspections, and must take account of safety and confidentiality considerations where such equipment is likely to be used.

Note that the provisions of paragraphs 88 through 96 of the Protocol allow the inspected State Party to restrict the use of approved equipment in certain circumstances. Restricted access will be discussed in greater detail in the analysis of paragraphs 88 through 96 below.

Paragraph 37 of Section B provides that equipment for use during on-site inspections shall consist of core equipment and auxiliary equipment. Core equipment is for inspection activities and techniques specified in paragraph 69. Auxiliary equipment is other equipment that is necessary for the effective and timely conduct of inspections. Paragraph 51 provides authority for the inspected State Party to exclude equipment that has not been approved, without prejudice to the requirement in paragraph 54, that the inspection team must be able to move from the point of entry to the inspection area within 36 hours.

Paragraph 38 of Section B requires the Technical Secretariat to ensure that all types of approved equipment are available for inspections when required. Also, when required, the Technical Secretariat shall certify that the equipment has been calibrated, maintained and protected. The Technical Secretariat shall provide documentation and attach authenticating seals. The inspected State Party has the right, under paragraph 51, to check that equipment has been approved and certified in accordance with this paragraph, and to exclude equipment that has not been approved and certified. Other than the rights of paragraph 51, the inspected State Party is precluded by paragraph 50 from restricting the presence or use of approved equipment. Note, however, as discussed above in regard to paragraph 36, that the inspected State Party can even restrict use of approved equipment in accordance with the provisions of paragraphs 88 through 96 of the Protocol.

Paragraph 39 of Section B provides that permanently held equipment shall be in the custody of the Technical Secretariat, and that the Technical Secretariat shall be responsible for the maintenance and calibration of such equipment.

Paragraph 40 of Section B provides that, as appropriate, the Technical Secretariat shall make arrangements with States Parties to provide equipment mentioned in the list of equipment approved by the Conference under paragraph 36. The States Parties providing such equipment shall be responsible for its maintenance and calibration.

The third section of Part II of the Protocol, consisting of paragraphs 41-44, details the required contents of an inspection request, an inspection mandate, and the notification of an inspection to an inspected State Party. This section is divided into three parts, consistent with the title, as follows: "On-Site Inspection Request," paragraph 41; "Inspection Mandate," paragraph 42; and "Notification of Inspection," paragraphs 43 and 44.

The first part of Section C is titled "On-Site Inspection Request" and consists of only paragraph 41. This paragraph provides that an on-site inspection request shall contain the information required by subparagraphs (a) through (h) of paragraph 41 (other information is not excluded). The right to request an on-site inspection is provided by paragraph 34 of Article IV of the Treaty, and paragraphs 35 through 38 of Article IV of the Treaty contain additional provisions related to on-site inspection requests.

Subparagraph 41(a) requires the estimated geographical and vertical co-ordinates of the location of the event that triggered the request for an inspection. Also required is an indication of the possible margin of error.

Subparagraph 41(b) requires the proposed boundaries of the area to be inspected. The boundaries are to be specified on a map, and must be in accordance with paragraphs 2 and 3 of Part II of the Protocol. (Paragraphs 2 and 3 limit the place and size of an inspection area; see the discussion above.)

Subparagraph 41(c) requires naming the State Party or States Parties to be inspected, or an indication that the area to be inspected or part of that area is beyond the jurisdiction or control of any State.

Subparagraph 41(d) requires specifying the probable environment of the event that triggered the request. The word "environment" refers to potential testing environments, i.e., the atmosphere, outer space, underwater, and underground.

Subparagraph 41(e) requires an estimated time of the event that triggered the request with an indication of possible margin of error.

Subparagraph 41(f) is a general requirement that all data upon which the request is based be provided. Paragraph 37 of Article IV of the Treaty sets forth the acceptable sources of information upon which an on-site inspection request can be based.

Subparagraph 41(g) requires that personal data regarding the proposed observer, if any, be provided. Note that paragraph 61 of Article IV of the Treaty, and paragraphs 63 through 68 of the Protocol, contain provisions regarding the observer. (Also, despite the use of the singular form of the word "observer" there can be as many as three such observers.)

Subparagraph 41(h) requires information about the results of a consultation and clarification process, if any, that may have been conducted in relation to the proposed inspection, or an explanation of why such a process has not been carried out. Paragraphs 29 through 33 of Article IV of the Treaty concern the consultation and clarification process.

The next part of Section C is entitled "Inspection Mandate", and only consists of paragraph 42. This paragraph sets forth the required contents of an inspection mandate in ten subparagraphs (a) through (j). Paragraph 54 of Article IV of the Treaty requires the Director-General to issue an inspection mandate for the conduct of any on-site inspection.

Subparagraph 42(a) requires the mandate to include the decision of the Executive Council to approve the on-site inspection request (see paragraphs 46 through 52 of Article IV of the Treaty for provisions concerning Executive Council decisions).

Subparagraph 42(b) requires the name of the state (or states) Party to be inspected, or an indication that the inspected area is beyond the jurisdiction or control of any state.

Subparagraph 42(c) requires the location and boundaries of the inspection area specified on a map. This specification must take into account all information on which the request was based, all other technical information, and be in consultation with the requesting State Party.

Subparagraph 42(d) requires the planned types of activity of the inspection team in the inspected area. Note that subparagraph 60(e) requires that activities during the inspection must be relevant to the purpose of the inspection, and paragraph 69 sets forth the activities that may be conducted.

Subparagraph 42(e) requires the point of entry to be used by the inspection team.

Subparagraph 42(f) requires any transit or basing points, as appropriate. Transit or basing points are for inspections in an area beyond the jurisdiction or control of any state. Paragraphs 105 and 106 of this Protocol contain provisions in regard to such points.

Subparagraph 42(g) requires the name of the head of the inspection team.

Subparagraph 42(h) requires the names of the members of the inspection team.

Subparagraph 42(i) requires the name of the proposed observer, if any. (See the discussion of subparagraph 41(g) above.)

Subparagraph 42(j) requires a list of equipment to be used in the inspection area.

Paragraph 42 also provides that if the Executive Council makes a decision pursuant to Article IV, paragraphs 46 to 49, of the Treaty, that necessitates a modification of the inspection mandate, the Director-General may update the mandate with respect to planned types of activities, members, and equipment, as appropriate. The inspected State Party must be immediately notified of any such modification.

The next part of Section C is titled "Notification of Inspection" and consists of two paragraphs, paragraphs 43 and 44.

Paragraph 43 of Section C sets forth the required contents of a notification of inspection in five subparagraphs, (a) through (e). Article IV, paragraph 55 of the Treaty requires the Director-General to notify the inspected State Party of the inspection. This notification must be no less than 24 hours before the planned arrival of the inspection team at the point of entry.

Subparagraph 43(a) requires that the inspection mandate be included.

Subparagraph 43(b) requires the date and estimated time of arrival of the inspection team at the point of entry.

Subparagraph 43(c) requires the means of arrival at the point of entry.

Subparagraph 43(d) requires the standing diplomatic clearance number for non-scheduled aircraft, if appropriate.

Subparagraph 43(e) requires a list of any equipment the Director General requests the inspected State Party to make available to the inspection team.

Paragraph 44, the last paragraph of Section C, requires the inspected State Party to acknowledge receipt of the notification by the Director-General no later than 12 hours after receipt. Note that Article IV paragraph 55 of the Treaty provides that the inspection team can arrive as early as 24 hours after the notification, so delay in acknowledging the notification would not affect the requirement to allow access to the inspection team.

D. Pre-Inspection Activities

The fourth section of Part II of the Protocol is subtitled "Entry Into the Territory of the Inspected State Party, Activities at the Point of Entry and Transfer to the Inspection Area." Section D, consisting of paragraphs 45 through 55, provides detailed provisions in regard to the various rights and activities of an inspection team prior to an inspection, and the rights and responsibilities of an inspected State Party prior to an inspection.

Paragraph 45 of Section D requires an inspected State Party that has been notified of the arrival of the inspection team to ensure the immediate entry of the team into its territory. As noted above, Article IV, paragraph 55 of the Treaty provides for a 24 hour notice to the inspected State Party, prior to the arrival of the inspection team at the point of entry.

Paragraph 46 of Section D provides for the filing of a flight plan for the use of non-scheduled aircraft by an inspection team. Specifically, this paragraph states that when a non-scheduled aircraft is used, the Technical Secretariat shall provide the inspected State Party with a flight plan, through the National Authority, for the aircraft's flight from the last airfield prior to entering the airspace of the inspected State Party to the point of entry, not less than six hours before. the scheduled departure time from that airfield. This paragraph further states that such a plan shall be filed in accordance with the procedures of the International Civil Aviation Organization applicable to civil aircraft. Also, this paragraph states that the Technical Secretariat shall include in the remarks section of each flight plan the standing diplomatic clearance number and the appropriate notation identifying the aircraft as an inspection aircraft. Finally, if a military aircraft is used, the Technical Secretariat shall request prior authorization from the inspected State Party for the aircraft to enter its airspace.

Paragraph 47 of Section D requires the inspected State Party to ensure approval of the flight plan. Specifically, this paragraph states that not less than three hours prior to the scheduled departure of the inspection team from the last airfield prior to entering the airspace of the inspected State Party, the inspected State Party shall ensure that the flight plan filed in accordance with paragraph 46 is approved so that the inspection team may arrive at the point of entry by the estimated arrival time.

Paragraph 48 of Section D provides that, where necessary, the head of the inspection team and the representative of the inspected State Party shall agree on a basing point and a flight plan from the point of entry to the basing point and, also if necessary, to the inspection area.

Paragraph 49 of Section D requires the inspected State Party to provide for or arrange parking, security protection, servicing and fuel as required by the Technical Secretariat for the aircraft of the inspection team at the point of entry and, where necessary, at the basing point and at the inspection area. This paragraph further states that such aircraft shall not be liable for landing fees, departure tax, and similar charges. This paragraph further states that it also applies to aircraft used for overflight during the inspection.

Note that paragraphs 46, 47 and 49 are similar to corresponding provisions found in other recent arms control agreements such as the Open Skies Treaty and START.

Paragraph 50 of Section D provides that, subject to paragraph 51, there shall be no restriction by the inspected State Party on the inspection team bringing approved equipment into the inspected State Party and using the equipment in accordance with the provisions of the Treaty. There are, however, some restrictions on these rights. First, as specifically stated in this paragraph, the rights are subject to paragraph 51, which provides the inspected State Party with the right to check the equipment and exclude it under certain highly limited circumstances (see paragraph 51 below). Next, the use must be in accordance with the Treaty. Finally, as noted above in the analysis of paragraph 36, the inspected State Party can restrict the use of equipment in certain circumstances, for example, when restricted access sites are declared (see also the discussion of paragraphs 88 to 96 below).

Paragraph 51 of Section D gives the inspected State Party a limited right to check and exclude approved equipment. Specifically, this paragraph states that the inspected State Party shall have the right, without prejudice to the prescribed time frames (see paragraph 54), to check in the presence of inspection team members at the point of entry that the equipment has been approved and certified in accordance with paragraph 38. (Paragraph 38 provides a procedure for the Technical Secretariat to certify equipment and authenticate the certification.) The inspected State Party may exclude equipment that is not in conformity with the inspection mandate or that has not been so approved and certified. Note that the inspection mandate only requires that a list of equipment be provided; therefore, if equipment is on that list and is approved under paragraph 38 it may not be excluded.

Paragraph 52 of Section D provides for a pre-inspection briefing of the inspection team by the inspected State Party. Specifically, this paragraph states that immediately upon arrival at the point of entry the head of the inspection team shall present to the representative of the inspected State Party the inspection mandate and an initial inspection plan prepared by the team. The time for this initial procedure is to be "without prejudice" to the time-frame of paragraph 54, that is, the time that the inspection team takes to make this presentation does not count against the 36 hours allowed the inspected State Party under paragraph 54. The paragraph further requires the inspected State Party to brief the inspection team, with the aid of maps and other appropriate documents, about relevant natural terrain features, safety and confidentiality issues, and logistical arrangements. This paragraph also provides that the inspected State Party may indicate locations within the inspection area that, in its view, are not related to the purpose of the inspection. However, unless the inspected State Party takes the extra step of restricting access pursuant to paragraphs 88 to 96, this indication would not impede an inspection of such locations.

Paragraph 53 of Section D requires that, after the pre-inspection briefing, the inspection team modify the initial inspection plan, as appropriate, taking into account comments by the inspected State Party. The modified plan shall then be made available to the representative of the inspected State Party. Note that, while there is a requirement that the inspection plan be modified to take into account comments by the inspected State Party, there is no provision for resolving a dispute between the inspected State Party and the team as to whether the modified plan fully meets the comments. The U.S. expects that, should a dispute arise, the inspected State Party will take whatever steps are necessary, consistent with safety and constitutional considerations, to make every reasonable effort to satisfy the inspection mandate through alternative means. Overall, the inspected State Party would be able to implement the managed access provisions set forth in paragraphs 86 to 96.

Paragraph 54 of Section D requires that the inspected State Party shall do "everything in its power" to provide assistance and to ensure the safe conduct of the inspection team, and approved equipment, from the point of entry to the inspection area no later than 36 hours after arrival at the point of entry, unless other timing has been agreed within the time-frame specified in paragraph 57 (i.e., begin inspection activities within the inspection area as soon as possible, i.e., once the inspected State Party has completed required and necessary actions at the point of entry, but in any case the inspection activities must begin no later than 72 hours after arrival at the point of entry).

Note that paragraph 32 of Section B requires each State Party to designate a sufficient number of points of entry to enable an inspection team to reach any inspection area from at least one point of entry within 24 hours. The 36-hour time frame set forth in paragraph 54 is intended to recognize that additional time may be required in order for the inspected State Party to check whether the inspection equipment has been approved and certified in accordance with paragraph 38 of Section B. However, there is no Treaty requirement that the inspection team wait for 24 hours, 36 hours, or any other period of time after arriving at the point of entry before beginning an inspection. Rather, paragraph 57 indicates that inspection activities are to commence as soon as possible, i.e., once the inspection team and the inspected State Party have completed required and necessary actions, but in any case must begin no later than 72 hours after arrival at the point of entry.

Paragraph 55 of Section D provides for verification of the location of the inspection site. Specifically, this paragraph provides that, to confirm that the area to which the inspection team has been transported corresponds to the inspection area specified in the inspection mandate, the inspection team shall have the right to use approved location-finding equipment. Finally, this paragraph requires the inspected State Party to assist the inspection team in this task.

E. Conduct of Inspections

The fifth section of Part II of the Protocol, consisting of paragraphs 56-110, sets forth detailed rules and procedures that apply to the conduct of inspections. This section is divided further into ten parts, as follows: "General Rules," paragraphs 56-61; "Communications," paragraph 62; "Observer," paragraphs 63-68; "Inspection Activities and Techniques," paragraphs 69-70; "Overflights," paragraphs 71-85; "Managed Access," paragraphs 86-96; "Collection, Handling and Analysis of Samples," paragraphs 97-104; "Conduct of Inspections in Areas beyond the Jurisdiction or Control of any State," paragraphs 105-108; "Post-Inspection Procedures," paragraph 109; and "Departure," paragraph 110.

The first part of Section E, entitled "General Rules," consists of paragraphs 56 through 61, and contains rules of general applicability for the conduct of on-site inspections.

Paragraph 56 of Section E provides that the inspection team shall discharge its functions in accordance with the provisions of the Treaty and the Protocol. This is a statement of a rule of general applicability in international law, that is, activities conducted under authority of an international agreement shall be in accordance with the provisions of that agreement.

Paragraph 57 of Section E provides that the inspection team shall begin its inspection activities in the inspection area as soon as possible, but in no case later than 72 hours after arrival at the point of entry. For reference, this paragraph is one of a number that involve timing requirements, for example: paragraph 26 - timing for issuance of visas; paragraph 32 - time to reach an inspection area; paragraph 46 - aircraft flight plan times; and paragraph 54 - time for movement from point of entry to the inspection area.

Paragraph 58 of Section E states that the activities of the inspection team shall be so arranged as to ensure the timely and effective discharge of its functions and the least possible inconvenience to the inspected State Party and disturbance to the inspection area.

Paragraph 59 of Section E provides for the use by the inspection team of equipment requested from the inspected State Party by the Director General pursuant to paragraph 43(e). Specifically, this paragraph states that in cases where before or in the course of the inspection, the inspected State Party has been requested to make available any equipment for use by the inspection team, the inspected State Party shall comply with the request to the extent it can. Note that the inspected State Party is only required to respond to requests for use of equipment at an inspection site to the extent that it is able to do so.

Paragraph 60 of Section E sets forth eight specific rights and obligations of an inspection team during an on-site inspection in subparagraphs (a) through (h). Note that these are not the only rights of an inspection team; the subparagraphs contain an illustrative list only. In general, under international law, and within the provisions of the Treaty and Protocol, an inspection team has the rights necessary to carry out effectively the purpose of the inspection as set forth in the mandate and stated in Article IV paragraph 35.

Subparagraph 60(a) provides that the inspection team shall have the right to determine how the inspection will proceed, consistent with the inspection mandate and taking into account any steps taken by the inspected State Party consistent with the provisions on managed access (see paragraphs 86-96).

Subparagraph 60(b) provides the inspection team the right to modify the inspection plan, as necessary, to ensure the effective execution of the inspection. This recognizes and provides for the possibility that during the course of an inspection, circumstances could make a change of plan necessary.

Subparagraph 60(c) states the obligation of the inspection team to take into account the recommendations and suggested modifications by the inspected State Party to the inspection plan.

Subparagraph 60(d) provides the inspection team the right to request clarifications in regard to ambiguities that may arise during the inspection. Note that the inspected State Party is obligated under paragraph 61(g) to provide such clarification.

Subparagraph 60(e) obligates the inspection team to use only the techniques specified in paragraph 69 and to refrain from activities not relevant to the purpose of the inspection. This paragraph further provides that the inspection team shall collect and document such facts as are related to the purpose of the inspection, but shall neither seek nor document information which is clearly not related thereto. Finally, this paragraph provides that any material collected and subsequently found not to be relevant shall be returned to the inspected State Party.

Subparagraph 60(f) obligates the inspection team to take into account and include in its report data and explanations on the nature of the event that triggered the request that are provided by the inspected State Party from its national monitoring networks and other sources.

Subparagraph 60(g) obligates the inspection team to provide the inspected State Party, at its request, with copies of the information and data collected in the inspection area.

Subparagraph 60(h) obligates the inspection team to respect the confidentiality and the safety and health regulations of the inspected State Party.

Paragraph 61 of Section E sets forth six specific rights and one specific obligation of an inspected State Party during an on-site inspection in subparagraphs (a) through (g). This, also, is illustrative only, and is not an exhaustive list of the rights and obligations of an inspected State Party. In general, under international law and within the provisions of the Treaty and Protocol, an inspected State Party has the rights necessary to demonstrate its compliance with the Treaty. Article IV paragraph 57 of the Treaty sets forth rights and obligations of an inspected State Party.

Subparagraph 61(a) provides the inspected State Party the right to make recommendations at any time to the inspection team regarding possible modification of the inspection plan.

Subparagraph 61(b) provides the right and also requires the inspected State Party to provide a representative for liaison with the inspection team.

Subparagraph 61(c) provides the inspected State Party with the right to have representatives accompany the inspection team during the performance of its duties and to observe all inspection activities carried out by the inspection team. The paragraph specifically states, however, that this shall not delay or otherwise hinder the inspection team in the exercise of its functions. Note that the inspected State Party is not required to provide representatives to accompany the inspection team.

Subparagraph 61(d) provides the inspected State Party with the right to provide additional information and to request the collection and documentation of additional facts it believes are relevant to the inspection.

Subparagraph 61(e) provides the inspected State Party the right to:

• examine all photographic and measurement products as well as samples

• receive duplicate copies of the same

• retain any photographs or parts thereof, showing sensitive sites not related to the purpose of the inspection

• retain photographic originals and first-generation photographic products

• put photographs or parts thereof under joint seal in its territory

• provide its own camera operator to take still/video photographs as requested by the inspection team (otherwise, members of the team shall do this).

Subparagraph 61(f) provides the inspected State Party the right to provide the inspection team, from its national monitoring networks and from other sources, with data and explanations on the nature of the event that triggered the request for an on-site inspection.

Subparagraph 61(g) obligates the inspected State Party to provide the inspection team with such clarification as may be necessary to resolve any ambiguities that arise during the inspection. (See subparagraph 60(d), which gives the team the right to ask for clarification.)

The second part of Section E is titled "Communications" and consists of only paragraph 62.

Paragraph 62 of Section E provides the inspection team the right, at all times during the on-site inspection, to communicate with the Technical Secretariat and among its members. Specifically, this paragraph states that inspectors shall have the right throughout the on-site inspection to communicate with each other and with the Technical Secretariat. This paragraph further states that for this purpose they may use their own duly approved and certified equipment with the consent of the inspected State Party, to the extent that the inspected State Party does not provide them with access to other telecommunications.

The third part of Section E is titled "Observer" and consists of paragraphs 63 through 68.

Paragraph 63 of Section E provides for coordination of the arrival of the observer and the inspection team at the point of entry. Specifically, this paragraph provides that in accordance with the provisions of paragraph 61 of Article IV, with regard to the participation of an observer in an on-site inspection, the requesting State Party shall liaise with the Technical Secretariat to coordinate the arrival of the observer at the same point of entry or basing point as the inspection team within a reasonable period of the inspection team's arrival.

Note that paragraph 61 of Article IV, inter alia, requires the agreement of the inspected State Party for the participation of an observer. Also, as mentioned above (see the discussion of subparagraph 41(g)), even though the singular form of the word "observer" is used, paragraph 61 of Article IV allows as many as three observers from an aggregate of requesting States Parties.

Paragraph 64 of Section E provides the observer with the right to communicate with the requesting State Party. Specifically, this paragraph provides that the observer shall have the right throughout the inspection to be in communication with the embassy of the requesting State Party located in the inspected State Party or, in the case of absence of an embassy, with the requesting State Party itself.

Paragraph 65 of Section E provides that the observer shall have the right to arrive at the inspection area, and to have access to the inspection area as granted by the inspected State Party.

Paragraph 66 of Section E provides that the observer shall have the right to make recommendations to the inspection team throughout the inspection.

Paragraph 67 of Section E provides that throughout the inspection, the inspection team shall keep the observer informed about the conduct of the inspection and the findings.

Paragraph 68 of Section E requires the inspected State Party to provide the amenities necessary for the observer; however, the costs of the observer are the responsibility of the requesting State Party. Specifically, this paragraph provides that throughout the inspection, the inspected State Party shall provide or arrange for the amenities necessary for the observer similar to those enjoyed by the inspection team as described in paragraph 11. (Paragraph 11 contains an illustrative list that includes communication means, interpretation services, transportation, working space, lodging, meals and medical care.) Finally, paragraph 68 states that all costs in connection with the stay of the observer on the territory of the inspected State Party shall be borne by the requesting State Party.

The fourth part of Section E, titled "Inspection Activities and Techniques", consists of paragraphs 69 and 70.

Paragraph 69 of Section E sets forth specific inspection activities and techniques for use by an inspection team during an on-site inspection, in eight subparagraphs, (a) through (h). Specifically, the paragraph provides that the inspection activities may be conducted and techniques used, in accordance with the provisions on managed access, on collection, handling and analysis of samples, and on overflights. Note that this paragraph specifically references the provisions on managed access (which are found in paragraphs 86-96), thus acknowledging the ability of the inspected State Party to take measures managing activities and techniques. Note that subparagraph 60(e) obligates the team to "use only" the techniques specified in this paragraph.

Subparagraph 69(a) provides for position finding from the air and at the surface to confirm the boundaries of the inspection area and establish co-ordinates of locations therein, in support of inspection activities.

Subparagraph 69(b) provides for visual observation, video and still photography and multi-spectral imaging, including infrared measurements, at or below the surface, and from the air, to search for anomalies or artifacts.

Subparagraph 69(c) provides for measurement of levels of radioactivity above, at and below the surface, using gamma radiation monitoring and energy resolution analysis from the air, and at or under the surface, to search for and identify radiation anomalies.

Subparagraph 69(d) provides for environmental sampling and analysis of solids, liquids and gases from above, at or below the surface to detect anomalies.

Subparagraph 69(e) provides for passive seismological monitoring for aftershocks to localize the search area and facilitate determination of the nature of an event.

Subparagraph 69(f) provides for resonance seismometry and active seismic surveys to search for and locate underground anomalies, including cavities and rubble zones. Note that paragraph 70 precludes the use of these techniques during the initial 25-day phase of the inspection.

Subparagraph 69(g) provides for magnetic and gravitational field mapping, ground penetrating radar and electrical conductivity measurements at the surface and from the air, as appropriate, to detect anomalies or artifacts. Note that paragraph 70 precludes the use of these techniques during the initial 25-day phase of the inspection.

Subparagraph 69(h) provides for drilling to obtain radioactive samples. Note that drilling is subject to Article IV paragraph 48 of the Treaty, which requires a specific request to and approval of the Executive Council before drilling can proceed.

Note that Article IV paragraph 58 of the Treaty requires the conduct of an inspection in the least intrusive manner possible, consistent with the efficient and timely accomplishment of the inspection mandate, and specifically requires that inspectors seek only information and data necessary for the purpose of the inspection.

Paragraph 70 of Section E sets forth the details for the different stages in the process of on-site inspections. For the first 25 days after approval in accordance with Article IV, paragraph 46, the inspection team has the right to utilize the activities and techniques listed in subparagraphs 60(a) to (e). If the inspection is continued in accordance with Article IV, paragraph 47, the inspection team can use the techniques set out in subparagraphs 60(f) and (g). These techniques are generally more appropriate after the inspection area has been narrowed. In addition, many of them require heavier, less mobile equipment. The inspection team can only drill (pursuant to subparagraph 69(h)) after approval of the Executive Council in accordance with Article IV, paragraph 48 and in accordance with the provisions on managed access. Note that commencement of drilling is not limited in time, that is, it could be approved in the first 25 days if necessary. The final part of an inspection would begin if the inspection team requests an extension in accordance with Article IV, paragraph 49, for up to 70 more days, and such extension is approved by the Executive Council. If such an extension is requested, the inspection team must indicate in its request what paragraph 69 activities it intends to carry out during the extension.

The fifth part of Section E, titled "Overflights" consists of paragraphs 71 through 85, and details procedures for use by an inspection team of overflights.

Paragraph 71 of Section E provides the inspection team with the right to conduct one overflight (more than one such flight would be subject to the agreement of the inspected State Party, see paragraph 73.) Specifically, paragraph 71 states that the inspection team shall have the right to conduct an overflight over the inspection area during the on-site inspection for the purposes of providing the team with a general orientation of the inspection area, narrowing down and optimizing the locations for ground-based inspection and facilitating the collection of factual evidence, using equipment specified in paragraph 79. Note the careful delineation of the purpose and equipment of the overflight. Overflight is a sensitive matter to many states and the negotiators wanted the right to be carefully drawn.

Paragraph 72 of Section E requires the overflight to be conducted as soon as is practically possible and limits the initial overflight to no more than a 12 hour duration.

Paragraph 73 of Section E provides that additional overflights using equipment specified by paragraphs 79 and 80 may be conducted subject to the agreement of the inspected State Party.

Paragraph 74 states that the area to be covered by overflights shall not extend beyond the inspection area.

Paragraph 75 of Section E provides the inspected State Party the right to impose restrictions on the flight altitude, number of passes and circling, duration of hovering, type of aircraft, number of inspectors, and the type of measurements or observations. The inspected State Party also has the right to prohibit the overflight of sensitive sites not related to the inspection, but this right is limited to "exceptional cases and with reasonable justification." This paragraph also provides that if the team considers that the restrictions or prohibitions may impede the fulfillment of its mandate, the inspected State Party shall make every reasonable effort to provide alternative means of inspection.

Paragraph 76 of Section E requires overflights to be conducted according to a flight plan duly filed and approved in accordance with the aviation rules and regulations of the inspected State Party. Flight safety regulations of the inspected State Party shall be strictly observed throughout all flying operations.

Paragraph 77 of Section E provides that during overflights landing should normally be authorized only for purposes of staging and refueling.

Paragraph 78 of Section E requires overflights to be conducted at altitudes as requested by the inspection team consistent with the activities to be conducted, visibility conditions, as well as the aviation and the safety regulations of the inspected State Party and its right to protect sensitive information not related to the purpose of the inspection. Overflights shall be conducted up to a maximum of 1500 meters above the surface.

Paragraph 79 of Section E sets forth the equipment that can be used for the one overflight the inspection team has a right to conduct, pursuant to paragraphs 71 and 72. Specifically the equipment consists of field glasses; passive location-finding equipment; video cameras; and handheld still cameras. Note that subparagraph 61(e) provides the inspected State Party the right to provide its own camera operator to take photos requested by the team.

Paragraph 80 of Section E provides that for any additional overflights conducted pursuant to paragraph 73, inspectors on board the aircraft may also use portable, easily installed equipment for: multi-spectral (including infrared) imagery; gamma spectroscopy; and magnetic field mapping. Note that paragraph 70 requires that magnetic field mapping can only be used after approval by the Executive Council of the continuation of an inspection beyond 25 days.

Paragraph 81 of Section E provides that overflights shall be conducted with a relatively slow fixed or rotary wing aircraft that affords a broad, unobstructed view of the surface below. The U.S. will ensure, consistent with paragraph 75 of Section E, the protection of national security interests in the event of overflights during an on-site inspection.

Paragraph 82 provides the inspected State Party with the right to provide its own aircraft, pre-equipped as appropriate in accordance with the technical requirements of the relevant operational manual, and crew. If the inspected State Party does not provide the aircraft, this paragraph states that the aircraft shall be provided or rented by the Technical Secretariat.

Paragraph 83 of Section E provides the inspected State Party the right to check aircraft provided by the Technical Secretariat to ensure that it is equipped with approved inspection equipment. Such checking must be completed within the time-frame of paragraph 57 (i.e. begin inspection activities within the inspection area as soon as possible, but in any case no later than 72 hours after arrival at the point of entry). Thus, the inspected State Party must not use the right to check aircraft, set forth in paragraph 83, to delay unnecessarily the beginning of the initial overflight.

Paragraph 84 of Section E provides that personnel on board the aircraft shall consist of: the minimum number of crew consistent with safe operation; up to four members of the inspection team; up to two representatives of the inspected State Party; an observer, if any, subject to the agreement of the inspected State Party; and an interpreter, if necessary.

Paragraph 85 of Section E requires that procedures for the implementation of overflights be detailed in the Operational Manual for On-Site Inspections. (See the discussion of paragraph 13 in regard to this manual.)

The sixth part of Section E, titled "Managed Access", consists of paragraphs 86 through 96, and details rights and procedures for managing access in the inspection area. Note that in this context, as a general matter, Article IV, paragraph 57 of the Treaty defines access to mean both the physical access of the team and its equipment to, and the conduct of inspection activities within, the inspection area.

Paragraph 86 of Section E states the right of the inspection team to access the inspection area in accordance with the provisions of the Treaty and the Protocol.

Paragraph 87 of Section E requires the inspected State Party to provide access within the inspection area in the time-frame specified in paragraph 57, (i.e. no later than 72 hours after arrival at the point of entry).

Paragraph 88 of Section E, in three subparagraphs, sets forth a list of the rights and obligations of the inspected State Party. This paragraph refers to paragraph 57 of Article IV of the Treaty, which also sets forth rights of the inspected State Party.

Subparagraph 88(a) provides the inspected State Party the right to take measures to protect sensitive installations and locations in accordance with the Protocol.

Subparagraph 88(b) obligates the inspected State Party, when it restricts access, to make every reasonable effort to satisfy the requirements of the inspection mandate through alternative means. This paragraph also requires that the resolution of questions about one part of the inspection not delay or interfere with the conduct of the inspection team regarding other aspects of an inspection. Note that the obligation contained in this provision is related to the obligation contained in paragraph 60 of Article IV of the Treaty, for the inspected State Party to demonstrate its compliance with the Treaty through alternative means, if the inspected State Party restricts access in an inspection area.

Subparagraph 88(c) gives the inspected State Party the right to make the final decision regarding access of the inspection team, taking into account its obligations under this Treaty and the provisions on managed access. The United States has carefully considered the balance between inspection intrusiveness and the need to protect sensitive information, locations, facilities and areas. The United States realizes that in some exceptional cases there may be the need to deny access to certain areas in order to protect sensitive information, locations, facilities and areas.

Paragraph 89 of Section E first explains the rights of the inspected State Party to protect sensitive installations and locations and to prevent disclosure of confidential information not related to the purpose of the inspection, (these rights are found in paragraph 88(a) of the Protocol, and paragraph 57(b) of Article IV of the Treaty, respectively). Then paragraph 89 sets forth an illustrative list of measures that an inspected State Party may take, in five subparagraphs.

Subparagraph 89(a) allows shrouding of sensitive displays, stores, and equipment.

Subparagraph 89(b) allows restricting measurements of radionuclide activity and nuclear radiation to determine the presence or absence of those types and energies of radiation relevant to the purpose of the inspection.

Subparagraph 89(c) allows restricting the taking of or analyzing of samples to determining the presence or absence of radioactive or other products relevant to the purpose of the inspection.

Subparagraph 89(d) allows managing access to buildings and other structures in accordance with paragraphs 90 and 91.

Subparagraph 89(e) allows the inspected State Party to declare restricted-access sites in accordance with paragraphs 92 to 96.

Paragraph 90 of Section E is the first of two provisions dealing with access to buildings and other structures. Paragraph 90 provides that access to buildings shall be deferred until after the approval of the continuation of an inspection (i.e. beyond 25 days pursuant to Article IV, paragraph 47), except for access to buildings and other structures housing the entrance to a mine, other excavations, or caverns of large volume not otherwise accessible. For such buildings and structures, the inspection team only has the right of transit, as directed by the inspected State Party, in order to enter such mines, caverns or other excavations.

Paragraph 91 of Section E provides for access to buildings and other structures after a continuation of an inspection. This paragraph provides that the team shall have the right to access buildings and other structures if the inspection team demonstrates credibly to the inspected State Party that access to buildings and other structures is necessary to fulfil the mandate and the necessary activities could not be carried out from the outside. The procedure to be followed is that the head of the team requests access from the inspected State Party. The request must indicate the purpose, the number of inspectors, as well as the intended activities. The inspected State Party has the right to impose restrictions or, in exceptional cases with reasonable justification, prohibitions on such access. The modalities for access shall be the subject of negotiations between the inspection team and the inspected State Party.

Paragraph 92 of Section E limits the size and total area of restricted-access sites. Specifically, each such site shall be no larger than 4 square kilometers, and the inspected State Party may only declare up to 50 square kilometers of restricted-access sites. If more than one site is declared, each site shall be separated from any other site by a minimum of 20 meters, and each site shall have clearly defined and accessible boundaries.

Paragraph 93 of Section E states that the size, location, and boundaries of restricted-access sites shall be presented to the head of the inspection team no later than the time that the team seeks access to a location that contains all or part of a site. There is no obligation for the inspected State Party to reveal the location of restricted areas prior to a request for entry, This provides additional protection for the inspected State Party, which may never need to reveal the locations of restricted access sites to the inspection team.

Paragraph 94 of Section E provides that the inspection team shall have the right to place equipment and take other steps necessary to conduct its inspection up to the boundary of a restricted-access site.

Paragraph 95 of Section E provides that the inspection team shall be permitted to observe visually all open places within the restricted-access site from the boundary of the site.

Paragraph 96 of Section E provides the modalities governing the inspection team's right to access restricted-access sites. First, prior to requesting access to restricted-access sites, the inspection team is required to make every reasonable effort to fulfil the inspection mandate outside the sites. If at any time the inspection team demonstrates credibly to the inspected State Party that the necessary activities authorized in the mandate could not be carried out from the outside and that access to a restricted-access site is necessary to fulfil the mandate, some members of the team shall be granted access to accomplish specific tasks within the site. The inspected State Party has the fight to shroud or otherwise protect sensitive equipment, objects and materials not related to the purpose of the inspection. Finally, the modalities for such access shall be subject to negotiation between the team and the inspected State Party.

The seventh part of Section E, entitled "Collection, Handling and Analysis of Samples," consists of paragraphs 97 through 104, and sets forth the detailed rules concerning samples.

Paragraph 97 of Section E provides the general fight of the inspection team to collect and remove relevant samples from the inspection area. However, this right is expressly subject to paragraphs 86-96 (i.e. the managed access rules) and paragraphs 98-100.

Paragraph 98 of Section E sets forth the procedures for the on-site analysis of samples. Specifically, this paragraph states that whenever possible, the analysis of samples shall be performed on-site. Representatives of the inspected State Party shall have the right to be present when samples are analyzed on site. This paragraph further states that at the request of the inspection team, the inspected State Party shall, in accordance with agreed procedures (i.e. as agreed between the inspection team and the inspected State Party, or as provided in Technical Secretariat guidelines that will be detailed in the Operational Manual for On-Site Inspections), provide assistance for the analysis of samples on-site. This paragraph states that the inspection team shall have the right to transfer samples for off-site analysis at laboratories designated by the Organization, but only if the team demonstrates that the necessary sample analysis cannot be performed on-site.

Paragraph 99 of Section E gives the inspected State Party the right to retain portions of all samples taken and take duplicate samples. This means that the inspected State Party has two means for providing a control for each sample -- retaining a portion of the original sample and taking a duplicate sample.

Paragraph 100 of Section E provides the inspected State Party the right to request that any unused samples or portions thereof be returned.

Paragraph 101 of Section E provides that designated laboratories shall conduct chemical and physical analysis of the samples transferred for off-site analysis. Details of such analysis shall be elaborated in the Operational Manual for On-Site Inspections.

Paragraph 102 of Section E sets forth, in five subparagraphs, general rules regarding the conduct of off-site analysis of samples. Specifically, this paragraph states that the Director-General shall have the primary responsibility for the security, integrity and preservation of samples and for ensuring that the confidentiality of samples transferred for analysis off-site is protected. This paragraph further states that the Director-General shall do so in accordance with procedures contained in the Operational Manual for On-Site Inspections.

Subparagraph 102(a) requires the Director-General to establish a stringent regime governing the collection, handling, transport and analysis of samples.

Subparagraph 102(b) requires the Director-General to certify the laboratories designated to perform different types of analysis.

Subparagraph 102(c) requires the Director-General to oversee the standardization of equipment and procedures at these designated laboratories and of mobile analytical equipment and procedures.

Subparagraph 102(d) requires the Director-General to monitor quality control and overall standards in relation to the certification of these laboratories and in relation to mobile equipment and procedures.

Subparagraph 102(e) requires the Director-General to select from among the designated laboratories those which shall perform analytical or other functions in relation to specific investigations.

Paragraph 103 of Section E sets forth the procedures for analyzing samples in off-site laboratories. Specifically, this paragraph states that when off-site analysis is to be performed, samples shall be analyzed in at least two designated laboratories. The purpose of this provision is to minimize erroneous results by conducting separate independent analyses of samples. Note that this language does not preclude the laboratories, if any, in the inspected State Party, or in the requesting State Party, from conducting the analysis, provided they are designated laboratories.

This paragraph also requires the Technical Secretariat to ensure the expeditious processing of the analysis.

Finally, this paragraph states that the samples shall be accounted for by the Technical Secretariat and any unused samples or portions thereof shall be returned to the Technical Secretariat.

Paragraph 104 of Section E describes the procedure for reporting the results of the laboratory analysis of samples. Specifically, this paragraph requires the Technical Secretariat to compile the results of the laboratory analysis of samples relevant to the purpose of the inspection. Pursuant to Article IV, paragraph 63, the Director-General shall transmit any results promptly to the inspected State Party for comments and thereafter to the Executive Council and to all other States Parties and shall include detailed information concerning the equipment and methodology employed by the designated laboratories.

The eighth part of Section E, entitled "Conduct of Inspections in Areas beyond the Jurisdiction or Control of any State," consists of paragraphs 105 through 108.

Paragraph 105 of Section E provides that in case of an on-site inspection in an area beyond the jurisdiction or control of any state, the Director-General shall consult with the appropriate States Parties and agree on any transit or basing points to facilitate a speedy arrival of the inspection team in the inspection area.

Paragraph 106 of Section E provides that the States Parties on whose territory transit or basing points are located shall, as far as possible, assist in facilitating the inspection, including transporting the inspection team, its baggage and equipment to the inspection area, as well as providing the relevant amenities specified in paragraph 11. The Organization shall reimburse assisting States Parties for all costs incurred.

Paragraph 107 provides that, subject to the approval of the Executive Council, the Director-General may negotiate standing arrangements with States Parties to facilitate assistance in the event of an on-site inspection in an area beyond the jurisdiction or control of any state.

Paragraph 108 provides that in cases where one or more States Parties have conducted an investigation of an ambiguous event in an area beyond the jurisdiction or control of any state, before a request is made for an on-site inspection in that area, any results of such investigation may be taken into account by the Executive Council in its deliberations pursuant to Article IV.

The ninth part of Section E, entitled "Post-Inspection Procedures," consists only of paragraph 109, which sets forth the procedures for providing the preliminary results of the inspection to the inspected State Party. Specifically, this paragraph states that upon completion of an inspection the inspection team shall meet the representative of the inspected State Party to review the preliminary findings of the inspection team and to clarify any ambiguities. Note that the inspection team will not be authorized to include in its "preliminary findings" any recommendations or judgements about the inspected State Party's compliance. The paragraph requires the inspection team to provide to the representatives of the inspected State Party its preliminary findings in written form according to a standardized format, together with a list of any samples and other material taken from the inspection area pursuant to paragraph 98. This paragraph further states that the document shall be signed by the head of the inspection team and that in order to indicate that notice of the contents of the document has been taken, the representative of the inspected State Party shall countersign the document. Finally, this paragraph states that this meeting shall be completed no later than 24 hours after the completion of the inspection.

The tenth, and last, part of Section E, entitled "Departure," also consists of only one paragraph. Paragraph 110 of Section E states that upon completion of the post-inspection procedures, the inspection team shall leave, as soon as possible, the territory of the inspected State Party. This paragraph also states that the inspected State Party shall do everything in its power to provide assistance and to ensure the safe conduct of the inspection team, equipment and baggage to the point of exit. Unless agreed otherwise by the inspected State Party and the inspection team, the point of exit used shall be the same as the point of entry.