U.S. Withdrawal Raises Open Skies Questions

September 2020
By Kingston Reif and Shannon Bugos

The remaining members of the 1992 Open Skies Treaty are moving forward with determining how the treaty will function following the planned withdrawal of the United States, but significant questions remain about how the treaty would function with the U.S. absence.

On July 6, the states-parties gathered for a videoconference to discuss the May announcement by the Trump administration that the United States will withdraw from the accord in November, citing issues with Russian compliance with and implementation of the treaty. (See ACT, June 2020.) U.S. Secretary of State Mike Pompeo said on May 21 that Washington might reconsider its decision should Russia return to compliance. Signed in 1992 and entered into force in 2002, the treaty permits each state-party to conduct short-notice, unarmed observation flights over the others’ entire territories to collect data on military forces and activities.

Hosted by treaty depositaries Canada and Hungary, the videoconference brought together 188 representatives from all 34 member countries, including the United States, according to a July 7 statement from the Organization for Security and Co-operation in Europe (OSCE).

The representatives discussed “the overall impact on operational functionality of the treaty, the impact on the allocation of observation quotas and on financial arrangements within the treaty, and other potential effects on the treaty,” said the OSCE statement.

After the conference, Russian Deputy Foreign Minister Sergey Ryabkov, who led the Russian delegation, told Russian news agency TASS that “many participants in the videoconference spoke about the United States’ withdrawal in November as something foregone.” He further commented that Russia does not view the United States “as a partner who is able to negotiate.”

On July 8, the Russian Foreign Ministry released a statement alleging that the remaining states-parties “have not yet shown their willingness to assume responsibility for the treaty, to give a principled assessment of the actions of the U.S. administration, and to engage in a truly meaningful dialogue with Russia in order to resolve mutual claims.”

Russia has not definitively stated how it will respond to the U.S. withdrawal and has broadly conditioned its continued participation in the treaty on its national security interests.

“Russia will continue to assess its partners’ willingness to fully comply with their obligations under the treaty and seek mutually acceptable solutions to emerging problems,” but ultimately “no scenario can…be ruled out,” according to the foreign ministry statement.

The United States did not release a statement following the conference.

U.S. allies have continued to express their regret at the U.S. decision to withdraw and indicated their intention to remain a party to the treaty.

“We believe that the withdrawal by the U.S. is wrong,” said German Foreign Minister Heiko Maas on Aug. 10. “Germany will continue to implement the Treaty on Open Skies and to do everything it can to preserve it.”

The states-parties will next convene in October, when flight quotas for 2021 will be determined.

How those quotas will be distributed in the absence of the United States is uncertain. Under the treaty, the United States can conduct 42 overflights a year. Most Canadian and European flights take place over Russia. Multiple states-parties are able to take part in an overflight, which has been beneficial to U.S. allies who do not possess properly outfitted aircraft.

The U.S. Air Force on July 14 officially cancelled the recapitalization program for the two Boeing OC-135B aircraft used for treaty overflights. Congress appropriated $41.5 million in fiscal year 2020 to continue replacement efforts for these aircraft, but Defense Secretary Mark Esper in March told Congress that he halted the funding until a decision on the future of the treaty was made. (See ACT, April 2020.)

Another unresolved issue is to what extent, if at all, states-parties, particularly Russia, can continue to conduct overflights of U.S. military bases in Europe after the official U.S. withdrawal.

In a May 22 letter to Esper, 21 Democratic members of the House Armed Services Committee expressed concern that “the United States has over 35,000 forward deployed troops and critical military equipment deployed in countries that will remain subject to Russian overflight under the treaty.”

Defense officials “have stated that there are currently no agreements in place with each of our partners that establish notification requirements in the event of a Russian overflight of U.S. forces and equipment,” the lawmakers said.

Some treaty flights resumed in August after all flights were halted in March due to the coronavirus pandemic. During Aug. 10–13, Russia conducted an overflight of Germany, the path of which included Ramstein Air Base, a U.S. Air Force base, and Spangdahlem Air Base, a NATO base.

Also uncertain is how imagery gathered from overflight data will be handled with respect to the United States and its allies. Under the treaty, all imagery collected from overflights is made available to any of the states-parties. Once Washington likely departs from the treaty in November, it will lose access to that data.

Russia has indicated that U.S. allies should not continue to share information gathered from Open Skies flights with the United States after its departure from the treaty.

The Russian Foreign Ministry said on May 26 that “Washington itself should not harbor too much hope of maintaining access to all data received under the treaty if it withdraws from it.”

Meanwhile, the House version of the fiscal year 2021 National Defense Authorization Act (NDAA) expresses the sense of Congress that the Trump administration’s decision to withdraw from the treaty did not comply with the fiscal year 2020 NDAA, which required the administration to notify Congress 120 days before announcing an intent to withdraw from the treaty.

The bill also requires a plan for how the United States will be notified of treaty flights over parties that host U.S. military and assets and an assessment of the potential effects of the U.S. withdrawal from the treaty on how the United States will obtain unclassified imagery and other information that it currently obtains under the treaty.

The House Appropriations Committee included a provision in their version of the fiscal year 2021 defense bill that would rescind $158 million from fiscal years 2019 and 2020 in funding for the program and prevent it from being reprogrammed.