Saving the Open Skies Treaty: Challenges and possible scenarios

Saving the Open Skies

Treaty: Challenges and

possible scenarios after the

U.S. withdrawal

Dr. Alexander Graef

September 2020

EURO-ATLANTIC SECURITY

POLICY BRIEF

The European Leadership Network (ELN) is an independent, non-partisan,

pan-European NGO with a network of nearly 200 past, present and future

European leaders working to provide practical real-world solutions to

political and security challenges.

About the author

Alexander Graef is a researcher in the project „Arms Control and Emerging

Technologies at the Institute for Peace Research and Security Policy at the University

of Hamburg (IFSH). He received his PhD in 2019 from the University of St. Gallen

(Switzerland) for a thesis on the network of Russian foreign policy experts and think

tanks. His current research focuses on conventional arms control and Russian security

and defense policy.

Support for this publication was provided by a grant from Carnegie Corporation of New York

Published by the European Leadership Network, September 2020

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Published under the Creative Commons Attribution-ShareAlike 4.0

The opinions articulated in this report represent the views of the author, and do not

necessarily reect the position of the European Leadership Network or any of its

members. The ELN’s aim is to encourage debates that will help develop Europe’s

capacity to address pressing foreign, defence, and security challenges.

Introduction

1. Technical Challenges

2. Treaty Implementation and Quotas

3. Four Future Scenarios

4. Recommendations

Contents

1 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

expressed at the obligatory state con-

ference that convened to discuss the

implications of the U.S. decision for the

Treaty.

The current situation is unprecedented.

The United States is the political and

philosophical founding father of the

Treaty,

and with 42 ights has the larg-

est annual ight quota.

Washington

also frequently conducts shared ights

with European NATO allies on U.S. air-

craft, provides much needed technical

expertise within the Open Skies Con-

sultative Commission (OSCC) – the im-

plementing body of the treaty – and ac-

counts for more than 12% of its budget.

Without U.S. ights and access to U.S.

territory, states will need to re-distribute

ight quotas. Responding to technical

challenges will be important to adapt

the Treaty after the U.S. withdrawal.

Ensuring Russia’s continued participa-

tion, however, is essential for the Trea-

ty’s survival.

3 For a history of the Open Skies treaty nego-

tiations see for example, Tucker, Jonathan, “Ne-

gotiating Open Skies: A Diplomatic History,” in

Krepon, M. and A. Smithson (eds.), Open Skies,

Open Control and Cooperative Security, (New

York: St. Martin’s Press, 1992) and Jones, Peter,

Open Skies: Transparency, Condence-Building

and the End of the Cold War (Palo Alto: Stanford

University Press, 2014).

4 The treaty sets a xed passive quota for

each member state. This is the maximum num-

ber of ights each state has to allow over its

own territory. The number of ights a state can

conduct is its active quota and cannot exceed

its own passive quota. The distribution of treaty

quotas roughly corresponds to the territorial

size of the states. The state party Russia-

Belarus and the United States need to allow 42

ights each.

Introduction

Signed in March 1992, the Open Skies

Treaty (herein thereafter referred to

as the Treaty) has been in force since

January 2002. It allows 34 states to

conduct joint, unarmed observation

ights over each other’s territory using

sensors with a predened resolution.

Besides providing valuable intelligence,

regular engagement between military

ocers from different states, particu-

larly those in NATO and Russia, contrib-

utes to trust- and condence-building.

On 21 May 2020, the Trump administra-

tion announced that it would leave the

Treaty, pointing to Russian noncompli-

ance as the main reason.

The following

day the U.S. submitted an ocial with-

drawal notice to the Treaty depositaries,

Canada and Hungary. The withdrawal

will take effect on 21 November 2020.

Given the benets of the Treaty, most

members publicly have regretted the

U.S. withdrawal decision and rearmed

their own commitment to the Treaty. In

a joint statement, the foreign ministers

of 12 states argued that the Treaty “re-

mains functioning and useful” and that

they would “continue to implement” it.

On 6 July 2020, similar positions were

1 Pompeo, Michael R, “On the Treaty on Open

Skies”, Press Release, May 21, 2020, https://

www.state.gov/on-the-treaty-on-open-skies/.

2 Federal Foreign Oce, “Statement of the

Foreign Ministries of Belgium, Czech Republic,

Finland, France, Germany, Greece, Italy, Luxem-

burg, Netherlands, Portugal, Spain and Sweden

on the announcement by the US to withdraw

from the Open Skies Treaty”, May 22, 2020, htt-

ps://www.auswaertiges-amt.de/en/newsroom/

news/joint-declaration-open-skies/2343892.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 2

Historically, the Treaty has been an in-

strument for improving military trans-

parency between NATO states and

members of the former Warsaw Pact.

Flight practice still reects this ap-

proach. Since 2002, while NATO mem-

bers agreed not to overy each other,

almost one third of the more than 1,500

ights conducted went over Russia and

Belarus.

At the same time, European

member states and Canada remain

concerned about Russia’s compliance

with the Treaty. Russia, in turn, has re-

cently voiced its discontent with the

ight practice of several Western states,

including the UK, France, and Norway.

The member states will address the

technical challenges primarily within

the OSCC. In July 2020, they created a

special informal working group for this

purpose chaired by Finland that is pre-

paring proposals on the future of the

Treaty. Questions about Treaty imple-

mentation will be raised at the upcom-

ing review conference of the Treaty,

which will take place from 7-9 October

2020. Before this, member states will

need to decide the distribution of ac-

tive ight quotas for 2021 at the annual

quota conference scheduled for 5-6 Oc-

tober 2020. The long-term future of the

5 Graef, Alexander & Moritz Kütt, “Visualizing

the Open Skies Treaty”, April 27, 2020, https://

openskies.ights/.

6 Ryzhkov, Sergey, “Vystupleniye na Konfer-

entsii Gosudarstv-uchastnikov Dogovora po

otkrytomu nebu po rassmotreniyu posledstviy

vykhoda SShA iz Dogovora” [Statement at the

Conference of member states to the Treaty on

Open Skies to review the consequences of the

U.S. withdrawal from the Treaty], July 6, 2020,

https://www.mid.ru/foreign_policy/news//

asset_publisher/cKNonkJE02Bw/content/

id/4212382.

Treaty depends on nding agreement

in all three areas: technical challenges,

treaty implementation, and quota distri-

bution.

The long-term future

of the Open Skies

Treaty depends on

nding agreement in all

three areas: technical

challenges, treaty

implementation, and

quota distribution.

Technical Challenges

Aircraft Capacity

The U.S. withdrawal will end all ights

on U.S. aircraft. This affects several

member states who do not possess

their own certied aircraft.

They either

lease aircraft from other member states

or conduct shared ights. From 2002 to

2019, European states and Canada con-

ducted 57 overights onboard the U.S.

7 Only nine states currently possess certi-

ed aircraft equipped with sensors. In addition

to the United States and Russia, these are

Bulgaria, Canada, Hungary, Sweden, Romania,

Turkey, and Ukraine. Bulgaria, however, has

stopped ying and is unlikely to resume. The

United Kingdom dismantled its former HS An-

dover aircraft in 2008. Moreover, the so-called

Pod-group (Belgium, Canada, France, Greece,

Italy, Luxembourg, the Netherlands, Norway,

Portugal, and Spain) that had operated a com-

mon “SAMSON” sensor pod attached to the

Lockheed C-130 Hercules aircraft dissolved in

2013. It now consists of France and Canada.

3 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

OC-135B. In the same period, however,

the U.S. also made use of European air-

craft capacity and conducted 89 shared

quota ights over Russia-Belarus and

Ukraine.

In the future, these places will become

available to other parties and would be

compensation for the loss of shared

ights on U.S. aircraft. In 2021, member

states are expected to certify the new

German Open Skies aircraft, which is

currently undergoing testing. This will

likely improve the situation further.

Nevertheless, without the U.S. OC-135B

it will be dicult to conduct some of

the missions, particularly those over

the vast Russian Siberian territories.

In contrast to U.S. aircraft, which can

conduct long-range ights of more than

6,000 kilometres, European aircraft, for

example, the Swedish Saab-340 and

the Romanian An-30, are multi-engine

turboprop aircraft with a ight range of

less than 3,000 kilometres.

Correspondingly, in the past, most of

the ights over Siberia that took off at

the Baikal International Airport in Ulan-

Ude used the U.S. OC-135B aircraft and

were conducted either unilaterally by

the U.S. or as shared missions with Eu-

ropean partners and Canada. In the fu-

ture, the remaining member states will

have to either reduce the number and

range of missions over Siberia, negoti-

ate new options with Russia for refu-

elling, or use the so-called taxi option,

that is, drawing on Russian long-range

aircraft when conducting overights.

In the future, the

remaining member

states will have to

either reduce the

number and range

of missions over

Siberia, negotiate new

options with Russia for

refuelling, or use the

so-called taxi option.

Unauthorized data sharing

In principle, data collected by sensors

during observation ights are only avail-

able to member states of the Treaty.

Nevertheless, Russian ocials have ex-

pressed concerns that NATO members

could continue to provide the U.S. with

imagery from Russia even after its with-

drawal.

According to the Head of the

Conventional Arms Control Division at

the Russian Ministry of Foreign Affairs,

Oleg Bushuev, Russia will put this issue

on the OSCC agenda after the U.S. with-

drawal and has already raised its inten-

8 This data is not even shared with interna-

tional organizations, including the OSCE and

NATO.

9 Deputy Foreign Minister Sergey Ryabkov

has argued that such data sharing would be

“extremely troublesome” and that Russia would

“need solid guarantees” to the contrary. See

TASS, “Open Skies Treaty data sharing with

US would cause problems, senior diplomat

warns”, May 23, 2020, https://tass.com/poli-

tics/1159657 and TASS, “Other countries may

leave Open Skies Treaty after US, says senior

Russian diplomat”, July 4, 2020, https://tass.

com/politics/1174791.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 4

5 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

tion to do so within the commission. In

his view, there exists “distinct blueprints

and ideas” about how to ensure nonpro-

liferation, but possible technical meas-

ures have not been disclosed.

Despite existing procedures for pro-

cessing and storage, verifying that data

are not being shared beyond Treaty

members is a complicated task. At

present, the rolls of analogue photo-

graphic lms are kept in sealed contain-

ers and developed at special national

facilities in the presence of representa-

tives from both the observing and the

observed party. Other Treaty members

can request copies. The same is true

for digital sensor data, currently in use

only on Russian and Romanian aircraft.

The data are saved on removable stor-

age media and processed using equip-

ment that is separated from any other

network and has no wireless connec-

tions. Nevertheless, the production of

unauthorised digital copies is arguably

easier and more dicult to prevent than

in the case of analogue photographs.

Although nding a technical solution is

necessary, the problem is essentially po-

litical. As U.S. technical means are able

to collect data of similar and even bet-

ter quality than the sensors used within

the Treaty, Russia seems to be primar-

ily concerned with its power status vis-

à-vis the United States rather than the

proliferation of sensitive military intel-

ligence. European member states and

10 Valdai Discussion Club, “Netikhiy DON, ili

Komu na vykhod iz otkrytogo neba?” [The not

so quite DON (OST), or who is leaving the Open

Sky?], July 7, 2020, https://www.youtube.com/

watch?v=rG3hM2-M1IY [56:14-59:10].

Canada could mitigate Moscow’s con-

cerns by issuing a public statement to

re-conrm that they will not share Trea-

ty-generated raw data and imagery with

non-member states, and act on it. Such

a commitment would not be veriable

but would be politically signicant.

OSCC Budget and Informal Working

Groups

Finally, the U.S. withdrawal will affect

the work of the OSCC. Currently, the

United States chairs two of the four

informal working groups (IWG) within

the OSCC: the IWG on Sensors (IWGS)

and the IWG on Notications and For-

mats (IWGNF).

The former develops

the technically complex certication

procedure for the sensor types that the

Treaty permits.

Here the knowledge

of U.S. technical experts and political

leadership have played an important

role, which will be dicult to replace.

For example, from 2005 onwards the

IWGS has worked intensively on certi-

cation procedures for thermal infrared

line scanners to ensure that the ground

resolution would always correspond to

50 centimetres.

Similarly, the IWGS

has been essential in implementing the

11 In addition, there are the IWG on Certica-

tions (IWGC) and the IWG on Rules and Proce-

dures (IWGRP).

12 The Open Skies Treaty permits four dif-

ferent sensors types, of which only the rst

two are currently in use: optical panoramic

and framing cameras, video cameras, infrared

line-scanning devices and sideways-looking

synthetic aperture radar. See Treaty on Open

Skies, Art. IV (1), https://www.osce.org/les/f/

documents/1/5/14127.pdf.

13 Spitzer, Hartwig, “News from Open Skies.

A co-operative Treaty maintaining military trans-

parency”, February 2009, Vertic Brief 8, https://

www.les.ethz.ch/isn/97949/BP8_Spitzer.pdf.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 6

transition from analogue black-and-

white cameras to digital electro-optical

sensors.

Russian representatives have already

stated that governmental experts need

to have the necessary experience if

they want to replace U.S. staff within

the respective working groups. This

means that, according to Moscow,

the incoming IWG chairs replacing the

U.S. ones need to have been actively

engaged in the implementation of the

Treaty and come from member states

that possess their own aircraft or plan

to acquire one in the near future.

These requirements, if implemented by

OSCC members, reduce the number of

possible candidates to just a couple of

states, particularly because Russia and

Germany already chair two informal

working groups.

Likely candidates

(with varying political feasibility) are

Bulgaria, Canada, Hungary, Romania,

Sweden, Turkey, and Ukraine.

In addition, the U.S. also contributes

about 12.6% of the OSCC budget. Con-

sequently, once it leaves the Treaty, the

remaining member states will need to

increase their relative shares. Such re-

calculations can be aided by a formula

14 Ryabkov, Sergey, “Vystupleniye na Kon-

ferentsii Gosudarstv-uchastnikov Dogovora po

otkrytomu nebu po rassmotreniyu posledstviy

vykhoda SShA iz Dogovora” [Statement at the

Conference of member states to the Treaty on

Open Skies to review the consequences of the

U.S. withdrawal from the Treaty], July 6, 2020,

https://www.mid.ru/foreign_policy/news//

asset_publisher/cKNonkJE02Bw/content/

id/4212382, pp. 4-5.

15 Germany chairs the IWG on Certications

(IWGC). Russia chairs the IWG on Rules and

Procedures (IWGRP).

based on the so-called OSCE standard

scale of contributions. Its use, however,

is a political decision and requires una-

nimity within the OSCC. If this formula

is applied, the largest contributors be-

yond the U.S. (Germany, France, Italy

and the United Kingdom) will need to in-

crease their share by a maximum of 1.6

percentage points each, from 10.3% to

11.9%, but for the majority of member

states, it will be less than 0.2 percent-

age points.

What does this mean in absolute num-

bers? The OSCC does not publish its

annual budget, but extrapolation from

available data suggests the annual

budget is in the range of EUR 700,000 to

1,000,000.

Hence, the actual increase

for each member state will vary, but for

most of them, will be below EUR 2,000

per year. Even for Germany, France, Italy

and the United Kingdom, the additional

payment will be less than EUR 17,000.

Despite ocial statements to the

16 The formula draws on the OSCE standard

scale of contributions (formerly the Helsinki

scale) but includes proportional, additional

contributions since not all OSCE members are

simultaneously parties to the Open Skies Treaty.

Post-Soviet states are exempt from these ad-

ditional contributions. See OSCC, 1992, Annex

IV to Decision Number Six, https://2009-2017.

state.gov/documents/organization/106722.

pdf. The OSCE standard scale remained

unchanged for many years, but in April 2019,

member states introduced minimal revisions

(PC.DEC/1325). The estimate above for 2021

incorporates them.

17 Own analysis and compilation based

on “Draft Assessment Report on the EU’s role

vis-à-vis the OSCE”, 15387/1/04 REV, Decem-

ber 10, 2004, http://register.consilium.europa.

eu/pdf/en/04/st15/st15387-re01.en04.pdf. In

2019, Germany provided EUR 67,720.49 to the

OSCC, which given the German share (10.275%)

amounts to a total OSCC budget of about EUR

660,000.

7 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 8

contrary,

the effect of the redistribu-

tion of shares after the U.S. withdrawal

will be negligible.

Despite ocial

statements to the

contrary, the effect of

the redistribution of

shares after the U.S.

withdrawal will be

negligible.

In spite of this, it is likely that the OSCC

budget redistribution will cause con-

troversy among member states for at

least two reasons. Russian representa-

tives have stated that they seek to pre-

serve an OSCC decision from 1992 that

exempts post-Soviet states from ad-

ditional payments to the OSCC on the

top of their basic contribution based

on the OSCE standard scale (formerly

the Helsinki scale).

Maintaining this

18 At the Open Skies state conference on

July 6 2020, the Canadian Deputy Permanent

Representative, Veronique Pepin-Halle, argued

that “given the magnitude OF the United States’

contribution to the budget of the Open Skies

Consultative Commission, it is clear that this

impact will be signicant for remaining States

Parties.” See Sevunts, Levon, “Russia accuses

Canada and the U.S. of violating Open Skies

Treaty”, July 10 2020, https://www.cbc.ca/

news/politics/open-skies-russia-canada-united-

states-1.5645987.

19 The exemption applies to Armenia,

Azerbaijan, Belarus, Georgia, Kazakhstan,

Kyrgyzstan, Moldova, the Russia, Tajikistan,

Turkmenistan, Ukraine and Uzbekistan. Only Be-

larus, Georgia, Russia and Ukraine are members

of the Open Skies Treaty, however. Kyrgyzstan

has signed the Treaty but did not ratify it, see

OSCC, 1992, Annex III to Decision Number Six,

practice, which at the time reected the

devastating economic situation in the

former Soviet Union, effectively would

freeze Russia’s contribution at the cur-

rent level even after the U.S. withdrawal.

Moreover, Russian Deputy Foreign Min-

ister Sergey Ryabkov has argued that

Moscow wants to link its consent to

the OSCC budget with the ocial annul-

ment of Russia’s nancial obligations

to the Joint Consultative Group of the

CFE treaty, which it refused to pay in the

past after withdrawing from it in March

2015.

Given Russia’s improved eco-

nomic performance, ongoing contro-

versies about its Treaty implementation

and its legally questionable suspension

of CFE membership, this approach will

cause much debate.

https://2009-2017.state.gov/documents/or-

ganization/106722.pdf.

20 Vystupleniye na Konferentsii Gosudarstv-

uchastnikov Dogovora po otkrytomu nebu po

rassmotreniyu posledstviy vykhoda SShA iz

Dogovora”, July 6, 2020, https://www.mid.ru/en/

foreign_policy/news/-/asset_publisher/cKNon-

kJE02Bw/content/id/4212382, p. 4.

9 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

Treaty Implementation

and Quotas

Most member states share the concerns

the United States has raised about Rus-

sia’s compliance,

but are keen to solve

them diplomatically. Russia in turn also

accused several Western members of

violating Treaty provisions.

The Treaty

Review Conference scheduled for Octo-

ber 7-9 will look at the issues of state

practice and Treaty implementation

over the past ve years.

Western and Russian concerns

Debates about Treaty implementation

and compliance have been a constant

feature, including controversies about

ight safety, territorial status conicts

and national security concerns.

In the

21 U.S. Department of State, “2020 Adher-

ence to and Compliance with Arms Control,

Nonproliferation, and Disarmament Agree-

ments and Commitments”, https://www.state.

gov/2020-adherence-to-and-compliance-with-

arms-control-nonproliferation-and-disarma-

ment-agreements-and-commitments-compli-

ance-report-2/

22 See for example, Ministry of Foreign

Affairs of the Russian Federation, “Treaty on

Open Skies: Questions and Answers”, May

26 2020, https://www.mid.ru/foreign_policy/

international_safety/regprla/-/asset_publisher/

YCxLFJnKuD1W/content/id/4138584?p_p_

id=101_INSTANCE_YCxLFJnKuD1W&_101_IN-

STANCE_YCxLFJnKuD1W_languageId=en_GB

and Kelin, Andrei, “Open Skies Clouded by Sham

and Ambiguity”, July 3 2020, https://www.

rusemb.org.uk/ambarticles/563.

23 Territorial status conicts have been the

most dicult to resolve. For example, Turkey

has consistently vetoed the accession of the

Republic of Cyprus, an EU member state, to

the treaty, because Ankara does not recog-

nize Cyprus’s sovereignty. Another problem is

the status of the Crimean peninsula. In 2014,

Russia invited other parties to overy the ter-

ritory from a designated Open Skies refuelling

last ten years, two major issues are at

the centre of concern: The Russian de-

nial of overights within its 10 kilome-

tre border zone to Georgia established

in May 2010, and the 500-kilometre

sub-limit over the Kaliningrad Oblast

adopted in June 2014.

The rst issue is unrelated to the

Treaty as such but stems from the

conict about the political status of two

Georgian breakaway regions, Abkhazia

and South Ossetia. Russia recognised

the sovereignty of both regions in the

aftermath of its war with Georgia in

August 2008. In light of this recognition,

Russia argues that as a sovereign non-

party state, the restrictions of Article

VI of the Treaty – that “[t]he ight path

of an observation aircraft shall not be

closer than […] ten kilometers […] ten

kilometers from the border with an

adjacent State that is not a State Party”

– apply.

No other member state of

the Treaty shares this position. To

them, Abkhazia and Ossetia are de jure

Georgian territories and Article VI does

not apply. In turn, Georgia regards the

Russian position as a violation of its

own sovereignty and ceased observing

its Treaty obligations affecting Russia

in April 2012.

aireld. Since the other state parties continue

to view Crimea as part of Ukraine, the peninsula

remains practically outside of treaty provisions.

For an analysis of these and other issues see

Graef, Alexander, “The End of the Open Skies

Treaty and the Politics of Compliance”, July 6

2020, https://www.lawfareblog.com/end-open-

skies-Treaty-and-politics-compliance.

24 See Treaty on Open Skies, Art. VI Sec-

tion 2, https://www.osce.org/les/f/docu-

ments/1/5/14127.pdf.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 10

for the operation of the region’s airport

and limited air travel.

The controversy

arises over whether the Treaty provides

grounds to establish sub-limits for

ights originating from the established

Open Skies airelds, such as Kubinka

(near Moscow). Russia argues that the

number of ights to observe its territory

has not changed and that ecient

observation of the Kaliningrad region

is possible. The remaining members

hold that the sub-limit not only violates

Treaty provisions but decreases

coverage in a militarily sensitive area,

thereby undermining both the ecacy

and the spirit of the Treaty.

In February 2020, Russia allowed a

joined ight by the U.S., Lithuania and

Estonia with a range of 505 kilometres

over the Kaliningrad region, thereby

undermining its own long-held policy.

It is unclear whether this was done to

buttress public justication efforts in

the wake of an expected U.S. withdrawal

or whether it represents a genuine sign

of goodwill. Nonetheless, if Russia is

indeed only concerned about the safety

of civilian air trac in a comparatively

small region, the State Parties could

consider broadening the discussion and

revisiting Annex E of the Treaty, which,

among others, regulates procedures for

territories separated from the mainland

27 Ministry of Foreign Affairs of the Russian

Federation, “Treaty on Open Skies: Questions

and Answers”, May 26, 2020, https://www.mid.

ru/foreign_policy/international_safety/regprla/-/

asset_publisher/YCxLFJnKuD1W/content/

id/4138584?p_p_id=101_INSTANCE_YCx-

LFJnKuD1W&_101_INSTANCE_YCxLFJnKuD1W_

languageId=en_GB.

28 Ibid.

In March 2018, Moscow signalled that

it would resume “receiving observation

ights in 10 kilometers contiguous

to two sections of Russia’s state

border in the Caucasus” and make

them permanent under the condition

“that Georgia implements in good

faith its obligations to accept Russian

observation missions.”

However, both

parties have not yet been able to nd a

satisfactory solution. A possible way

out could be returning to the status-quo

ante. In fact, even after the Georgian-

Russian war in August 2008, both

states continued to allow ights within

the context of the Treaty, each time

with the UK as a partner. Russia and

Georgia could return to this practice,

but supplement it with an agreement

that the disputed legal status of the two

regions remains unaffected.

The second issue concerns diverging

interpretations of certain Treaty

provisions. According to the Russian

Ministry of Foreign Affairs, the

500-kilometre sub-limit was introduced

in reaction to a Polish overight in April

2014, which took an unusually lengthy

path over the small region. Its zigzag

route had allegedly created problems

25 U.S. Department of State, “2019 Adherence

to and Compliance with Arms Control, Nonpro-

liferation, and Disarmament Agreements and

Commitments”, https://www.state.gov/2019-ad-

herence-to-and-compliance-with-arms-control-

nonproliferation-and-disarmament-agreements-

and-commitments-compliance-report/

26 For such a proposal see Frear, Thomas,

“Open Skies: A Status Neutral Approach for

Georgia and Russia”, ELN Policy Brief, August

2017, https://www.europeanleadershipnetwork.

org/wp-content/uploads/2017/10/170623-

FREAR-Open-Skies-Georgia-and-Russia.pdf.

11 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

they be addressed before the review

conference in October 2020.

Flight Quotas in 2021 and beyond

At the quota conference scheduled

for 5-6 October, 2020, member states

will need to nd agreement about the

distribution of active quotas for 2021.

Without a consensus, ights cannot

take place. This happened once before

in October 2017, when the dispute be-

tween Russia and Georgia about the

border issue put on hold all ights for

2018.

Russia and Belarus will likely

strive to increase the number of their

common ights across Europe and

Canada, since the U.S. withdrawal from

the Treaty will put an end to ights over

U.S. territory. Russian Deputy Foreign

Minister Sergey Ryabkov has already

expressed his position, however, that

the sum of passive and active quotas

shall remain the same.

29 Ryzhkov, Sergey, “Vystupleniye na Kon-

ferentsii Gosudarstv-uchastnikov Dogovora po

otkrytomu nebu po rassmotreniyu posledstviy

vykhoda SShA iz Dogovora” [Statement at the

Conference of member states to the Treaty on

Open Skies to review the consequences of the

U.S. withdrawal from the Treaty], July 6, 2020,

https://www.mid.ru/foreign_policy/news//

asset_publisher/cKNonkJE02Bw/content/

id/4212382, p. 3.

30 Spitzer, Hartwig, “The Open Skies Treaty

as a transparency regime”, Extended version of

a presentation at the International Conference

at the Protestant Academy (June 2018), Loc-

cum/Germany, November 2018, https://www.

bits.de/public/pdf/Open-Skies_2018_11_02_HS-

CS.pdf, p. 7.

31 “Vystupleniye na Konferentsii Gosudarstv-

uchastnikov Dogovora po otkrytomu nebu po

rassmotreniyu posledstviy vykhoda SShA iz

Dogovora”, July 6, 2020, https://www.mid.ru/

foreign_policy/news//asset_publisher/cKNon-

kJE02Bw/content/id/4212382, p. 4.

territory of member states. Here the

phrase “special procedures” as provided

in subparagraph 5 (B) (2) for territories

located more than 600 kilometres from

the mainland could be further specied,

or the threshold itself could be altered

in order to cover territories such as the

Kaliningrad region.

The Russian Foreign Ministry has pub-

lished its own list of accusations. While

most of them are directed against the

United States, others are directed at

European member states and Canada.

At the July state conference, the Head

of the Russian National Nuclear Risk

Reduction Center, Sergey Ryzhkov, spe-

cically argued that in 2015 the United

States had refused the Russian An-30B

access to its territory. The decision

was allegedly supported by Canada

and according to Ryzhkov has not been

changed since then. This comes as

a surprise because Russia has never

conducted ights over either the U.S.

or Canada using the An-30B due to the

limited range of the aircraft. The ight

planned in 2015 would have been an

exception because the long-range Rus-

sian Tu-154M had been under repair.

Ryzhkov also criticised the United King-

dom and France for denying access to

their overseas territories and remarked

that several states, including the United

Kingdom, Norway, and Canada, had

introduced altitude requirements that

would not allow Russia to use the mini-

mal conguration of its sensors. Al-

though Ryzhkov emphasised that these

issues were “not in the focus of atten-

tion”, he “strongly recommended” that

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 12

These scenarios notwithstanding, a

successful conclusion to the quota

conference could still become an ob-

stacle to progress. Although during the

conference the United States will still

be a member of the Treaty, it is unlikely

that Washington will apply for active

quotas in 2021. Without U.S. ight bids

this year, however, there is the possibil-

ity that Russia may succeed in receiv-

ing one of the four slots for ights over

Georgia. If this happens, Georgia could

once again refuse to give its consent

to the full package of quota distribu-

tions, which would make ights in 2021

impossible. Moreover, Russian Deputy

Foreign Minister Ryabkov indicated that

his country might insist that the con-

ference negotiations proceed without

the United States.

This potential con-

ict could bring the underlying political

struggle to the surface. Four different

scenarios for how things might play out

in the next few months are conceivable.

33 “Vystupleniye na Konferentsii Gosudarstv-

uchastnikov Dogovora po otkrytomu nebu po

rassmotreniyu posledstviy vykhoda SShA iz

Dogovora”, July 6, 2020, https://www.mid.ru/

foreign_policy/news//asset_publisher/cKNon-

kJE02Bw/content/id/4212382, p. 4.

At the quota

conference scheduled

for 5-6 October, 2020,

member states will

need to nd agreement

about the distribution

of active quotas for

2021.

This is helpful. It means that Moscow

is content with its overall Treaty quota

(42) and suggests that a redistribution

of previous U.S.-bound ights over Eu-

rope and Canada will be sucient for

Russia and Belarus. Such a redistribu-

tion should be technically possible. It

would affect about six ights per year

and would not require an amendment to

the Treaty text. In any case, Russia and

Belarus have not previously exhausted

their Treaty-allowed maximum ight

quota for most European states, except

Portugal, Spain, and Greece.

The Trea-

ty, however, does not require countries

to exhaust their allocation of ights.

Alternatively, Russia-Belarus may there-

fore choose to reduce their annual num-

ber of active ights.

32 According to the Treaty “No State Party

shall conduct more observation ights over the

territory of another State Party than a number

equal to 50 per cent, rounded up to the nearest

whole number, of its own total active quota, or

of the total passive quota of that other State

Party, whichever is less.” See, Treaty on Open

Skies, Art. III, Section I (10), https://www.osce.

org/les/f/documents/1/5/14127.pdf.

13 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

Four Future

Scenarios

The rst, and currently most optimistic

scenario, would see the United States

withdrawing in November without se-

rious damage to the Treaty. For this

to happen, the remaining Treaty mem-

bers will need to solve the technical

challenges mentioned above and nd

agreement about the quota distribution

for 2021. Russia would need to be pre-

pared to participate in a good-faith dia-

logue on the outstanding compliance

issues.

In the second scenario, several more

member states might follow the U.S.’

example and withdraw from the Treaty.

Prime candidates are states like Geor-

gia and the Baltic States that have a low

number of active ights, no certied

aircraft, and a special bilateral secu-

rity relationship with the United States.

Whether the Treaty can survive the exit

of more states depends on their number

and respective level of Treaty participa-

tion. In any case, the Russian reaction

to such a development would be crucial

to the long-term future of the Treaty.

The third scenario would see Russia

and Belarus withdrawing from the Trea-

ty, either immediately following the U.S.

withdrawal or in consequence of sce-

nario two. The former path is unlikely,

given the overall support for the Open

Skies Treaty in Moscow, but the latter

is a realistic option and represents an

active danger. Some experts point out

that, even in the case of a Russian exit,

Belarus would not be obliged to follow

suit.

Yet, since Minsk possesses nei-

ther certied aircraft nor sensors and

President Lukashenko’s political future

now depends increasingly on Moscow,

that seems unlikely. Without U.S. and

Russian participation, the Treaty would

be nished.

Finally, in a fourth scenario, the United

States could either revoke the with-

drawal decision before 21 November

2020 or rejoin the Treaty under a new

Democratic U.S. administration in

2021. Most member states favour one

of these alternative developments, and

European leaders have called on Wash-

ington to reconsider its position. At a

minimum, such a U-turn would require

Russia’s return to full compliance with

the Treaty within the next two months.

Even if Russia made this commitment,

however, it is dicult to imagine that

the current U.S. administration would

change a long-held policy position just

before or immediately after the Presi-

dential election.

Some U.S. Treaty supporters argue

that the withdrawal decision itself is

illegal because the Trump administra-

tion did not notify Congress 120 days

before submitting its withdrawal no-

34 Bell, Alexandra, Wolfgang Richter & Andrei

Zagorski, “How to x, preserve and strengthen

the Open Skies Treaty”, March 2020, Deep Cuts

Issue Brief 9, https://deepcuts.org/les/pdf/

Deep_Cuts_Issue_Brief_9-Open_Skies_Treaty.

pdf.

35 In his withdrawal statement in May 2020,

Secretary of State Mike Pompeo argued that

“we may, however, reconsider our withdrawal

should Russia return to full compliance with

the Treaty”. See “On the Treaty on Open Skies”,

Press Release, May 21, 2020, https://www.

state.gov/on-the-Treaty-on-open-skies/.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 14

tice as enshrined in Section 1234 of

the National Defense Authorization Act

(NDAA) 2020.

Although there exists

some legal uncertainty about Presiden-

tial authority when withdrawing from

international agreements, the idea that

Congress could force the administra-

tion to reverse its decision by appealing

to federal court is both unprecedented

and unrealistic.

A U.S. return to the Open Skies Treaty

in 2021 is possible, but Russian ocials

have already indicated that Moscow

will not accept a simplied procedure.

The United States would need to re-ap-

ply for Treaty membership (whose rati-

cation would require consent by the

U.S. Senate) and, as any new candidate,

would have to accept all previous OSCC

decisions. Moreover, the rules and pro-

visions that are in place currently would

have to be re-negotiated, including the

overall U.S. Treaty quota, the designa-

tion of Open Skies airelds, and the

ight range from them. In turn, if the

remaining member states fail to ad-

dress shared concerns about Russian

Treaty compliance and make progress

36 Engel, Eliot L. & Adam Smith, “Letter to

Secretary of State Mike Pompeo and Secretary

of Defense Mark Esper”, May 22 2020, https://

foreignaffairs.house.gov/2020/5/engel-smith-

denounce-trump-administration-s-illegal-with-

drawal-from-open-skies-Treaty.

37 Anderson, Scott R. & Pranay Vaddi, “When

Can the President Withdraw From the Open

Skies Treaty?”, April 22, 2020, https://www.

lawfareblog.com/when-can-president-withdraw-

open-skies-Treaty.

38 “Vystupleniye na Konferentsii Gosudarstv-

uchastnikov Dogovora po otkrytomu nebu po

rassmotreniyu posledstviy vykhoda SShA iz

Dogovora”, July 6, 2020, https://www.mid.ru/

foreign_policy/news//asset_publisher/cKNon-

kJE02Bw/content/id/4212382, p. 4.

towards resolving them, a U.S. return to

the Treaty would become increasingly

unlikely even under a Democratic Presi-

dent.

If the remaining

member states fail

to address shared

concerns about

Russian Treaty

compliance and

make progress

towards resolving

them, a U.S. return

to the Treaty would

become increasingly

unlikely even under a

Democratic President.

15 The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal

Recommendations

If the remaining state parties want to realize the rst aforementioned scenario and

save the Open Skies Treaty after the U.S. withdrawal comes into force in November

2020, they should take the following steps:

1. Reach out to Open Skies Treaty members with either a low number of ac-

tive ights, no certied aircraft and/or a special bilateral security relation-

ship with the United States to convince them to remain in the Treaty. In

particular, emphasise the security benets of the Treaty to these states,

including the possible provision of imagery from overights by all member

states, the lack of alternative national means of verication and the avail-

able intelligence on Russia and Belarus;

2. Express publicly the political will to keep the Treaty in operation, conrm

that sensor data from Open Skies Treaty overights will not be shared with

nonmembers and elaborate on how technical measures can prevent such

proliferation;

3. Actively engage Russia and Belarus in further negotiations about the 500

kilometre sub-limit over the Kaliningrad region. Consider shifting the de-

bate towards a broader discussion about special regulations for territories

separated from the mainland, including but not limited to the specication

of the phrase “special procedures” as provided in Annex E subparagraph 5

(B) (2) to the Treaty;

4. Address the Russian denial of overights within its 10 kilometre border

zone to Georgia established in May 2010, and involve Georgia in talks about

its denial of Russian overights over its territory. Re-visit possible solutions

with third-party mediation that would not impinge on the international sta-

tus of Abkhazia and South Ossetia (status neutrality);

5. Search for possible nancial and organisational solutions to safeguard the

work of the OSCC, including reasonable budget contributions reecting

present economic realities and, if possible, additional, voluntary contribu-

tions in accordance with Annex III to decision number 6 of the OSCC;

6. Evaluate the technical and political feasibility of re-establishing the Pod-

group to enhance aircraft capacity beyond 2020 and consider offering to

use the so-called taxi option, which is the provision of aircraft by the ob-

served party in order to facilitate ights, particularly long-range ights over

Siberia.

The ELN / Saving the Open Skies Treaty: Challenges and possible scenarios after the U.S. withdrawal 16

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