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Reference
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said to Parliament when the Arms Control and Disarmament (Privileges and Immunities) Act 1988 was being debated. any of our statements at that time offer any guidance for what we should do now? Did we give any indications then of what our policy would be in the future?
4.
The other point to bear in mind is that it is possible to provide varying degrees of immunity, and more or fewer privileges, as each case requires. It is not, therefore, necessary that Open Skies aircrew members should have all the privileges and immunities normally accorded to diplomats: as you have noted in your minute, it might be appropriate to follow the INF precedent.
5. Open Skies Functional Need
In what circumstances, therefore, might privileges and immunities be needed in the operation of the Open Skies Treaty? There is the case posited by the US, namely, the period of delay between the arrival in the "observed country" of the surveillance aircraft, and its commencing inspection over-flight. There is the question of the protection of air crews in the event of emergency landings, bad weather delays, accidents, and so on. I think that there is an argument for saying that members of armed Open Skies aircrew should be offered some protection while they are in "hostile" territory against, for example, arrest or detention, and against prosecution or suit in respect of actions carried out by them in the course of their official duties. I am therefore inclined to agree with the conclusion in the fourth paragraph of your minute, that we should agree with the US, and follow the INF and Stockholm precedents. Nevertheless, we must be sure that we can justify to Parliament the granting of privileges and immunities on the grounds that it is necessary to grant them to enable the Open Skies aircrew to carry out their functions, and that it is necessary to grant privileges and immunities to the extent which is proposed in the draft treaty.
6.
If this is to be our line, we need to think about the mechanics of implementing any agreement. As a preliminary, we must ensure that the policy is agreed at the appropriate level within Whitehall-privileges and immunities are a prickly political subject. Protocol Department will be able to advise on this. Once the policy is agreed, and the final text is settled, effect would be given to it in the UK by an Order in Council under the 1988 Act.
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