U.S. Considers Open Skies Treaty Withdrawal

November 2019
By Kingston Reif and Shannon Bugos

The Trump administration appears to be preparing to withdraw the United States from the 1992 Open Skies Treaty, according to lawmakers and media reports.

House Foreign Affairs Committee Chairman Eliot Engel (D-N.Y.) first sounded the alarm about a possible U.S. withdrawal in an Oct. 7 letter to National Security Advisor Robert O’Brien.

“I am deeply concerned by reports that the Trump administration is considering withdrawing from the Open Skies Treaty and strongly urge you against such a reckless action,” Engel wrote. “American withdrawal would only benefit Russia and be harmful to our allies’ and partners’ national security interests.”

Engel did not specify the source of the reports that prompted his letter.

Slate columnist Fred Kaplan reported on Oct. 9 that former National Security Advisor John Bolton pushed for withdrawing from the treaty before departing the administration in early September. Following Bolton’s departure, Kaplan wrote, White House staff continued to advocate for withdrawal and persuaded President Donald Trump to sign a memorandum expressing his intent to exit the treaty. The Omaha World-Herald reported that same day that the memorandum directed a withdrawal by Oct. 26.

Trump has not, however, formally announced a U.S. withdrawal from the treaty and ongoing discussions have revealed differing views within the administration about whether to do so.

Deputy Secretary of State John Sullivan told the Senate Foreign Relations Committee on Oct. 30 that "the United States has not withdrawn from the Open Skies Treaty."

"I've consulted with our ambassadors to NATO and the OSCE [Organization for Security and Cooperation in Europe] and ... conveyed ... their view that we should continue to be members of the treaty," he added

Sullivan added that the administration has yet to consult with allies or Congress on a possible withdrawal and that any decision to withdraw would require the unanimous support of NATO "to make sure we don't do damage to our NATO alliance."

The Open Skies Treaty, which entered into force in 2002 and has 34 states-parties, aims to increase confidence in and transparency of military activities, particularly in Europe, by allowing unarmed aerial observation flights over the entire territory of its participants for information-gathering purposes. The parties have yearly quotas on overflights and must make the information they acquire available to all treaty parties.

House Armed Services Committee Chairman Adam Smith (D-Wash.) and Sens. Bob Menendez (D-N.J.) and Jack Reed (D-R.I.), the ranking members of the foreign relations and armed services committees, respectively, joined Engel in an Oct. 8 letter to Secretary of State Mike Pompeo and Defense Secretary Mark Esper denouncing a possible withdrawal. The lawmakers wrote that pulling out of the treaty “would be yet another gift from the Trump administration to [Russian President Vladimir] Putin.” They also noted that the treaty “has been an essential tool for United States efforts to constrain Russian aggression in Ukraine.”

Eleven other Senate Democrats, led by Jeff Merkley (D-Ore.), wrote a separate letter to the secretary of state on Oct. 25 urging the administration not to exit the United States from the treaty.

Republican lawmakers also expressed concern about ditching the treaty. In an Oct. 8 statement, Rep. Don Bacon (R-Neb.) stated that he has “yet to see a compelling reason to withdraw” from the treaty, given the “valuable access to Russian airspace and military airfields” the United States gains from the treaty.

Several U.S. allies and partner nations, including Ukraine, are publicly calling for the preservation of the treaty, which was a topic of discussion at the High-Level NATO Conference on Arms Control and Disarmament held in Brussels on Oct. 25.

Daniel Drake, head of the Euro-Atlantic Security Policy Unit of the UK Foreign and Commonwealth Office, told a British parliamentary committee on Oct. 23 that the treaty “continues to perform an important role in transparency and risk reduction in the conventional arms control space."

The treaty “is one of the basic international treaties in the field of European security and arms control,” the Ukrainian Foreign Ministry said in a statement to The Wall Street Journal. “Ukraine is interested in maintaining and implementing this treaty,” the paper reported on Oct. 27.

The United States and several allies in December 2018 conducted an “extraordinary flight” over eastern Ukraine under the treaty. The flight followed a Russian attack in late November 2018 on Ukrainian naval vessels in the Black Sea. (See ACT, January/February 2019.)

Russian Foreign Ministry spokesperson Mari Zakharova said in an Oct. 8 statement that Russia had no comment on the concerns raised by U.S. lawmakers because the United States has made no official statement about withdrawing from the treaty.

“Russia is committed to its obligations under the treaty and exhibits the utmost flexibility for maintaining it,” she added.

According to the treaty, states-parties must give 72 hours advance notice before an overflight. At least 24 hours in advance, the observing state-party must supply its flight plan, which the host state-party can only modify for safety or logistical reasons. No territory is off-limits under the treaty.

A dispute between Georgia and Russia over the inclusion of Russian observers on flights over Georgia prevented agreement on quotas for 2018, thereby freezing all flights. Normal flights resumed in 2019. (See ACT, April 2019.)

In recent years, disputes over implementation and concerns from some U.S. officials and lawmakers about the value of the treaty have threatened to derail the pact.

For example, Washington raised concerns about Russian compliance with the treaty, citing in particular Russia's restriction of observation flights over Kaliningrad to no more than 500 kilometers and within a 10-kilometer corridor along Russia’s border with the Georgian border-conflict regions of South Ossetia and Abkhazia. In response, the United States has restricted flights over the Pacific Fleet in Hawaii and the missile defense interceptor fields in Fort Greely, Alaska.

Zakharova said that Russia would lift the ban on flights near Abkhazia and South Ossetia if Georgia met “its commitments on receiving Russian missions,” but “Tbilisi has not changed its position so far.”

The House-passed version of the fiscal year 2020 defense authorization act included a provision that would reaffirm congressional commitment to the treaty and prohibit the use of funds to suspend, terminate, or withdraw from the agreement unless “certain certification requirements are made.” The Senate version of the bill did not include a similar provision. The House and Senate continue to negotiate a final version of the bill.