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Making a Better Treaty on Open Skies CNS OCCASIONAL PAPER #50 · February 2021

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Making a Better Treaty on Open Skies CNS OCCASIONAL PAPER #50 · February 2021 Making a Better Treaty on Open Skies CNS OCCASIONAL PAPER #50 · February 2021 Peter Jones Making a Better Treaty on Open Skies Peter Jones James Martin Center for Nonproliferation Studies | February 2021 iii James Martin Center for Nonproliferation Studies Middlebury Institute for International Studies at Monterey 460 Pierce Street, Monterey, CA 93940, USA Phone: +1 (831) 647-4154 Fax: +1 (831) 647-3519 www.nonproliferation.org www.middlebury.edu/institute The views, judgments, and conclusions in this report are the sole representations of the authors and do not necessarily represent either the official position or policy or bear the endorsement CNS or the Middlebury Institute of International Studiehs at Monterey. Cover image: OC-135B Open Skies aircraft. It’s primary function is unarmed observation to support the Treaty on Open Skies. [Source: Wikimedia Commons] © 2021, The President and Trustees of Middlebury College iv James Martin Center for Nonproliferation Studies | February 2021 Contents Introduction ................................................................................................................................................... vi Background ................................................................................................................................................... 2 Compliance Issues ........................................................................................................................................ 4 The Trump Withdrawal .................................................................................................................................. 6 The Russian Withdrawal ............................................................................................................................... 8 A Way Forward ...............................................................................................................................................10 Proposal 1: Fix the Kaliningrad Issue Once and for All ........................................................................11 Proposal 2: Georgia ................................................................................................................................11 Proposal 3: No Areas Off-limits ..............................................................................................................12 Proposal 4: New Sensors .......................................................................................................................13 Proposal 5: Invite New Members to the Existing Treaty ........................................................................16 Proposal 6: Wider Still, and Wider .........................................................................................................18 The Need for a Phased Approach ................................................................................................................20 Conclusion .....................................................................................................................................................23 About the Author ...........................................................................................................................................25 James Martin Center for Nonproliferation Studies | February 2021 v Introduction The United States withdrew from the Treaty on Open Skies on November 22, 2020. In response, Russia announced on January 15, 2021 that it would begin internal steps required to withdraw from the treaty. The Russian statement did not say when Moscow would formally inform the other parties to the treaty of its intention to withdraw, which would begin a six-month clock to withdrawal. It seems difficult to imagine how Open Skies can continue without these two members. If the treaty is to be sustained, the US will have to rejoin, and Russia will have to suspend its withdrawal. There are encouraging indications that the two sides have begun talking about Open Skies in the wake of the Biden inauguration.1 For the Biden Administration, the key question will be whether Open Skies is worth expending time and political capital, given many other priorities. For the Russians, the key issue is whether they are prepared to work to address issues which have given critics of the treaty ammunition against it, or whether letting Open Skies go is preferable as part of a broader diplomatic strategy. For the remaining members of the treaty, and particularly the larger European allies, it is time to indicate firmly that they value the treaty and are unwilling to see it slide into history. The Biden Administration, in particular, may require indications of support from key allies as it makes decisions as to what to prioritize in its first months in office. While saving the treaty is the immediate priority, lost in the scramble to do so is consideration of the deeper question of whether the treaty is in need of reform. Open Skies was first proposed in 1955, revived in 1989, signed in 1992 and entered into force in 2002. In many respects, it has changed very little. Perhaps the Trump withdrawal from Open Skies, unfortunate though it may have been, could serve as an inflection point in the history of the treaty; a moment to step back and consider whether something more suited to today’s world can be developed. This paper will examine whether and how the treaty could be sustained and will propose short-term ideas to that effect. It will also consider medium and longer-term ideas that could be pursued not merely to maintain the existing agreement, but to 1During a telephone conversation between Presidents Biden and Putin on January 20, 2021, which was primarily about extending the Strategic Arms Reduction Treaty (START), the two sides also discussed the future of the Open Skies Treaty. See, Tetrault-Farber, G. and T. Hunnicutt, “Russia-U.S. extend arms pact, Kremlin says, as Biden, Putin talk,” Reuters, January 26, 2021, at: https://www.reuters.com/article/us-russia-usa-security-kremlin/ russia-u-s-extend-arms-pact-kremlin-says-as-biden-putin-talk-idUSKBN29V10N. vi James Martin Center for Nonproliferation Studies | February 2021 modify, update and expand the concept. It is hoped that the ideas presented in this paper will stimulate the treaty members to re- think what they want from Open Skies in the 21st Century, while also providing ample incentive for the US to re-join and Russia to remain. That said, considerations about the future of Open Skies, for both the US and Russia, are part of a much bigger web of issues. James Martin Center for Nonproliferation Studies | February 2021 1 Background The idea behind Open Skies is very straightforward; each participant2 permits other members of the treaty to conduct short-notice overflights, using agreed aircraft and sensors, for the purpose of building confidence that untoward military or other activities are not in preparation.3 Open Skies is a “stand alone” agreement; it is not tied to the verification provisions of any other arms control agreement or Confidence-Building Measure (CBM). Nor is it formally part of the Organisation for Security and Cooperation in Europe (OSCE), though there are links between the two which will be explored later in this paper. Open Skies overflights can obviously be used to help verify other agreements, or to support the purposes of the OSCE (or any other body) and this is explicitly recognized and welcomed in the Preamble to the treaty. The flights can also be used to acquire information for any other purpose. For much of its history, the Open Skies regime operated quietly and effectively. Between its entry into force in 2002 and 2020, over 1,500 Open Skies flights had taken place, most without any controversy. Under the terms of the treaty, the data collected on each flight is available to every other member of the regime, on a cost-recovery basis, thus enabling all to have access to an enormous amount of information. This is particularly a boon to the smaller regime members, who do not conduct many overflights themselves or have their own means of collecting aerial imagery. Indeed, the treaty has always been seen as a vehicle to promote confidence and transparency at multiple levels. As noted, for the smaller nations, including many of America’s allies, the ability to collect and receive Open Skies data represents a unique means of allaying concerns and building confidence. Even for the larger states, Open Skies flights return data which cannot easily be replicated by satellites. Flights can linger over particular areas in 2Following the US withdrawal, the 34 state parties to the Open Skies Treaty are: Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Czech Republic, Denmark (including Greenland), Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom. Kyrgyzstan signed the treaty but has not yet ratified it. 3For general histories of the negotiation of the Open Skies Treaty see: Jones, P., Open Skies: Confidence-building, Transparency and the End of the Cold War, (Palo Alto: Stanford University Press, 2014); Tucker, J., “Negotiating Open Skies: A Diplomatic History,” in Krepon, M. and A. Smithson, (eds.), Open Skies, Arms Control and Cooperative Security, (New York: St. Martin’s Press, 1992); and Dunay, P., M. Krasznai, H. Spitzer, R. Wiemker and W. Wynne, Open Skies: A Cooperative
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