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DEPARTMENT OF STATE, Washington, August 12,1992.
The PRESIDENT, Also enclosed, for the information of Senate, are the following five documents associated with, but not part of, the Treaty: Decision Number One on the Distribution of Costs Arising Under the Treaty on Open Skies in accordance with Annex L, Section 1, paragraph 9, dated June 29, 1992; Decision Number Two on Additional Non-Destructive-Testing Equipment To Be Used by the Observed Party in accordance with Annex F, Section I, paragraph 7, dated June 29, 1992; Decision Number Three on Methodology For Calculating the Minimum Height Above Ground Level at Which Each Optical Camera Installed on an Observation Aircraft May Be Operated During an Observation Flight in accordance with Annex D, Appendix 1, Section III, paragraph 2, dated June 29, 1992; Decision Number Four on Minimum Camera Specification For an Observation Aircraft of an Observed Party Exercising its Right To Provide an Observation Aircraft For an Observation Flight, dated June 29, 1992; and Decision Number Five on Responsibility For the Processing of Film Used During an Observation Flight in accordance with Article IX, Section II, paragraph 2, dated June 29, 1992. Except for the Decision on the Distribution of Costs, these Decisions are legally binding. Although not submitted for the advice and consent of the Senate to ratification, these four documents are relevant to consideration of the Treaty by the Senate. The Decision on the Distribution of Costs Arising Under the Treaty on Open Skies in accordance with Annex L, Section 1, paragraph 9 has not been adopted by the Open Skies Consultative Commission (the implementing body of the Treaty made up of representatives from each State Party and the body which adopted the above-mentioned Decision). The Open Skies Consultative, Commission will adopt this Decision during its next session, scheduled for September 1992. The Open Skies Consultative Commission has endorsed the current draft text of the Decision; however, agreement could not be reached on the issue of navigation fees which a major- ity of the States Parties-including the United States-believe should be waived. Pending resolution of this issue, some States Parties -- including the United States -- have reserved their position on other cost issues. INTRODUCTION The Treaty on Open Skies represents the widest-ranging international effort to date to promote openness and transparency of military forces and activities. The Treaty covers the territories of the twenty-five initial signatories, from Vancouver to Vladivostok. Additional states are expected to become parties to the Treaty in the near future. OBJECTIVE OF THE TREATY The Treaty on Open Skies is designed to enhance mutual understanding and confidence by giving all States Parties, regardless of size, a direct role in gathering information about military forces and activities of concern to them. In Europe, the Treaty responds to the desire of many states to find innovative means of strengthening confidence, stability and predictability in the new and more fluid situation which has developed following the end of the bipolar division of the continent. In other regions, the same basic concept of openness, and the modalities and techniques developed in the Treaty, could be important elements in the reduction of regional tensions and the prevention of conflict. BACKGROUND Open Skies is an old idea which has come to fruition in a new form in a very new context. Open Skies was first proposed by President Eisenhower to the former Union of Soviet Socialist Republics at the Geneva Conference of 1955. In the context of the Cold War, this bilateral proposal was rejected by the Soviet Union and lay dormant for a generation. When the Administration reformulated Open Skies as a multilateral proposal in May 1989, the world was on the threshold of revolutionary developments. Open Skies was proposed as an instrument of confidence building, which would promote and consolidate the international trends toward openness already in train. Formal negotiations on a Treaty on Open Skies began in Ottawa in February 1990, and continued in Budapest in April and May 1990. At that time, however, the Soviet Union was still not prepared to open all of its territory to aerial observation. Following the stalemate at Ottawa and Budapest, the Open Skips negotiations lapsed for over a year, although the United States and others continued to press the issue bilaterally. It was only after the abortive coup in Moscow in August 1991 that the former Soviet Union changed its position and agreed to open all of its territory for aerial observation. This change cleared the way for productive negotiations, which commenced in November 1991 in Vienna, leading to the signing of the Treaty in Helsinki on March 24, 1992. BASIC ELEMENTS OF OPEN SKIES The Treaty on Open Skies is based on complete territorial openness, on the use of unarmed observation aircraft, on sensors on board those aircraft, and on quotas of observation flights which each State Party is willing to accept, and entitled to conduct, annually. Territory: The first requirement for a realistic Open Skies regime was that all States Parties agreed to make their entire territory accessible to aerial observation. This was also the most difficult question to resolve, given the long tradition of keeping certain areas closed in the former Soviet Union. It has now been agreed, and specified in the Treaty, that all territory is open to observation, and that States Parties may not restrict observation flights for national security reasons. Parties may restrict an observation flight only for legitimate reasons of flight safety. Aircraft: Observation flights will be conducted on unarmed fixed-wing aircraft provided either by the observing Party or by the observed Party. The United States, and most other States Parties, would have been prepared to have all flights conducted on aircraft provided by the observing Party. However, the option of using aircraft provided by the observed Party was included at the insistence of the former Soviet Union, a position which has been continued by Russia. All aircraft used in Open Skies will be subject to rigorous certification and inspection procedures to ensure that sensors on board the aircraft meet Treaty standards, and that only permitted sensors are installed. Sensors: Aircraft may be equipped with video cameras and panoramic and framing cameras for daylight photography; infra-red line scanning systems, which can operate by day and night; and synthetic aperture radar, which can operate day and night in any weather. The quality of pictures produced by the cameras on an observation aircraft is designed to make it possible to recognize major items of military equipment-for example, to distinguish between a tank and a truck. States Parties may consider additional categories of sensors during periodic meetings of the Open Skies Consultative Commission. To ensure the fullest possible participation in Open Skies, including participation by States lacking appropriate sensor technology, the Treaty provides that sensors which are used must be commercially available to all States Parties. Quotas: Each State Party in Open Skies has agreed to a quota of observation flights which it is willing to accept annually from other States Parties. Quotas are loosely scaled to the size of the States Parties, with the smallest participants having a quota of 2 to 4, flights each. The United States and Russia/Belarus, as the largest States Parties, have accepted quotas of 42 annual observation flights each. How many flights are actually conducted over a State Party, and which other States Parties will conduct them, will depend on the particular concerns of individual States Parties and the evolution of the international situation. PARTICIPATION IN THE TREATY The following States participated in the negotiation of the Treaty: the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Belarus, Canada. the Czech and Slovak Federal Republic, the Kingdom of Denmark, the French Republic the Federal Republic of Germany, the United Kingdom of Great Britain and Northern Ireland, the Hellenic Republic, the Republic of Hungary, the Republic of Iceland, the Hellenic Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Kingdom of Norway, the Republic of Poland, the Portuguese Republic, Romania, the Ressian Federation, the Kingdom of Spain, the Republic of Turkey, Ukraine and the United States. In addition, the other newly independent states on the territory of the former Soviet Union are considered to be initial participants in the Treaty, should they so desire; in this regard, Georgia signed the Treaty on March 24, 1992, in Helsinki. Further, the other participants in the Conference on Security and Cooperation in Europe were invited as observers to the Open Skies negotiations. It is expected that many of these States will become States Parties soon after the Treaty enters into force. The Treaty is open to any interested State becoming a party to the Treaty subject to agreement by current States Parties. It is not restricted geographically. IMPLEMENTATION The Treaty establishes an Open Skies Consultative Commission, composed of representatives of each State Party, which will meet in Vienna to monitor the operation of the Treaty and to discuss and resolve problems which !nay arise. The Open Skies Consultative Commission may make decisions or recommendations only by consensus, meaning the absence of any objection by a State Party to the making of the decision or recommendation in question. Raw data collected from observation flights, for example photographic film and magnetic tapes, will be available to both the observing and observed Parties. Other States Parties will be able to purchase copies of data in which they are interested from the observing Party. The Treaty is of unlimited duration, and provides for periodic review conferences. CONCLUSION Accompanying this Report is an Article-by-Article Analysis of the Treaty, including its Annexes, and the five associated documents. I believe that this Treaty, by creating an innovative multilateral regime for aerial observation, will enhance the national security of the United States and its North Atlantic Treaty Organization allies in the new and more fluid international situation resulting from the break-up of the Soviet Union and will contribute to stability not only in the area where it is first being applied -- primarily Europe -- but in other regions of the world as well. I therefore recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification at the earliest possible date. Respectfully submitted, JAMES A. BAKER III. Attachments: As stated.
ARTICLE-BY-ARTICLE ANALYSIS OF THE TREATY ON OPEN SKIES STRUCTURE OF THE TREATY
The Treaty consists of a Preamble, 19 Treaty Articles, and 12 Annexes with three Appendices. The Annexes and Appendices are integral parts of the Treaty. Also, there are four legally binding Decisions associated with the
Treaty that were completed during the first session of the Open Skies
Consultative Commission. The Decisions are as follows: Additional Non-Destructive
Testing Equipment to be used by the observed Party in accordance with
Annex F, Section 1, paragraph 7; Methodology for Calculating the Minimum
Height Above Ground Level at Which Each Optical Camera Installed on
an Observation Aircraft May Be Operated During an Observation Flight
in accordance with Annex D, Appendix 1, Section III, paragraph 2; Minimum
Camera Specification for an Observation Aircraft of an Observed Party
Exercising its Right to Provide an Observation Aircraft for an Observation
Flight;, and Responsibility for the Processing of Film Used During an
Observation Flight in accordance with Article IX, Section II, paragraph
2. These documents are legally binding and constitute separate international
agreements that are associated with, but not part of, the Treaty. Also
attached for the information of the Senate is the draft Decision on
the Distribution of Costs Arising Under the Treaty on Open Skies. The
draft has not yet been adopted by the Open Skies Consultative Commission.
Once it is adopted, it will have the same legally binding status as
the other Decisions.
The Preamble consists of nine paragraphs. Paragraph 1 states that the States Parties are those States that have concluded the Treaty. The States that concluded the Treaty are those that signed the Treaty on March 24, 1992. They are the United States of America, the Federal Republic of Germany, the Republic of Belarus, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Kingdom of Denmark, the Kingdom of Spain, the French Republic, Georgia, the United Kingdom of Great Britain and Northern Ireland, the Hellenic Republic, the Republic of Hungary, the Republic of Iceland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of Norway, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, Romania, the Russian Federation, the Czech and Slovak Federal Republic, the Republic of Turkey, and Ukraine. States Parties may also include States that sign the Treaty after March 24, 1992 as well as those that accede to the Treaty after the Treaty has entered into force. Article XVII of the Treaty designates those States that may sign and accede to the Treaty. In this respect, it should be noted that Georgia, although it did not participate in the negotiations, signed the Treaty on March 24. It did so based on provisions in the Treaty developed to facilitate participation by all of the newly independent States which have emerged on the territory of the former Soviet Union. Article XVII, which deals with the Depositaries, Entry into Force and Accession to the Treaty, provides that the States listed in Article XVII, paragraph 3 may sign the Treaty prior to its entry into force. Specifically, Article XVII, paragraph 3 provides that the Treaty shall be open for signature by Armenia, Azerbaijan, Georgia, Kazakhstan, Kirgystan, Moldova, Tajikistan, Turkmenistan and Uzbekistan and shall be subject to ratification by them. None of these States participated in the negotiation of the Treaty. However, by signing and ratifying the Treaty, these States will become States Parties. It should also be noted that the remaining eight States may accede to the Treaty (become a State Party to the Treaty after the Treaty has entered into force) at any time pursuant to Article XVII, paragraph 3 of the Treaty. In addition, Article XVII provides that States other than the nine newly independent States of the former Soviet Union may become States Parties by acceding to it after the Treaty has entered into force. Article XVII, paragraph 4 provides in pertinent part that, for six months after entry into force of this Treaty, any other State participating in the Conference on Security and Cooperation in Europe, other than those mentioned in paragraph 3 of Article XVII, may apply for accession by submitting a written request to one of the Depositaries. Article XVII, paragraph 5 provides that, following six months after entry into force of the Treaty, the Open Skies Consultative Commission may consider the accession to the Treaty of any State which, in the judgment of the Commission, is able and willing to contribute to the objectives of the Treaty. The second paragraph of the Preamble notes that the states Parties recall their commitments made in the Conference on Security and Cooperation in Europe. In this respect, openness, transparency, and confidence-building are among the primary objectives of the Treaty. The third paragraph of the Preamble notes that the States Parties welcome the historic events in Europe which have transformed the security situation from Vancouver to Vladivostok. These events, including the dissolution of the Warsaw Pact, the unification of Germany, and the dissolution of the former Soviet Union, are seen as highly favorable to peace, security and stability by all participants. The fourth paragraph of the Preamble notes that the States Parties wish to contribute to the further development and strengthening of peace, stability and cooperative security in that area by the creation of an Open Skies regime for aerial observation. "That area" as referred to in this paragraph of the Preamble is the area formed by the original signatories which stretch from Vancouver to Vladivostok. The fifth paragraph of the Preamble notes, at United States suggestion, that the States Parties recognize the potential contribution of the Open Skies regime to the security and stability in other regions. This paragraph recognizes the potential for the Treaty principles to cover areas beyond Vancouver to Vladivostok. The sixth paragraph of the Preamble describes a potential range of contributions which the Open Skies regime might make, noting for example the possibility of employing the Open Skies regime to improve openness and transparency, to facilitate the monitoring of compliance with existing or future arms control agreements, and to strengthen the capacity for conflict prevention and crisis management in the framework of the Conference on Security and Cooperation in Europe. The paragraph emphasizes the instrumental way in which open Skies may contribute in a variety of institutional contexts without being limited to any particular set of activities or institutional frameworks. The seventh paragraph of the Preamble notes that the States Parties envision the possible extension of the Open Skies regime into additional fields, such as the protection of the environment. This paragraph is intended to reflect the desire of some delegations to eventually expand the scope of the Open Skies regime to such fields as environmental protection. This idea is also reflected in Annex L, Section IV of the Treaty, which provides that "States Parties may raise for consideration in the Open Skies Consultative Commission proposals for the use of the Open Skies regime in additional specific fields, such as the environment." The eighth paragraph of the Preamble sets forth an underlying principle of the Open Skies Treaty: that all territories of all the States Parties are to be open for aerial observation. This paragraph specifically states that the States Parties seek to establish agreed procedures to provide for aerial observation of all the territories of States Parties. The paragraph also states that this observation is to be accomplished on the basis of equity and effectiveness. This is reflected in the balance in the Treaty between the rights and obligations of States Parties under the Treaty, and in provisions on the conduct of operations and the quality of output. The reference to flight safety reflects the fact that the only permissible limitation on observation flights under the Treaty is for reasons of flight safety. This paragraph also notes that aerial observation will be conducted either through the observation of a single State Party or of groups of States Parties. The ninth and final paragraph of the Preamble notes that the Open Skies regime will be without prejudice to States not participating in it. This paragraph is intended to assure non-participating States that their interests will not be damaged by the operation of the Open Skies Treaty, for example, by the use of observation flights conducted under the provisions of the Treaty to gather information on non-participating States.
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