Beyond the Open Skies Treaty

20 July 2020, 1227 EDT

Guest post by Sandor Fabian is a PhD candidate at the University of Central Florida and instructor of record at the NATO Special Operations School. His research is in security studies with a focus on new concepts of conflict, U.S. foreign military aid, and counter hybrid warfare. Follow him at @SandorFabian2 and Doreen Horschig is a PhD candidate and teaching associate at the University of Central Florida. Her research is in nuclear security with a focus on public and elite opinion on nuclear weapons and norms of weapons of mass destruction. Follow her at @doreen__h

By now the world has learned that the Trump administration sees little benefit in international agreements. This tendency seems to be particularly true for international arms control treaties as demonstrated by the United States’ formal withdrawal from the Joint Comprehensive Plan of Action with Iran, the Intermediate-Range Nuclear Forces Treaty with Russia, and soon the Open Skies Treaty (hereafter, OST). Since U.S. withdrawal from the treaty is hardly avertable, we look beyond the existence of OST and suggest that this move might not necessarily be a bad idea. OST is arguably outdated, and its remaining benefits can be reproduced through other means. At the same time, the departure from the treaty must be accompanied by the development of new global arms control frameworks that better address future challenges.

The Open Skies Treaty, signed in 1992, is an international agreement among 35 countries that permits joint and unarmed observation flights over each other’s territory to collect data on military facilities, forces, and activities. OST has been valuable over the years to its members through the promotion of greater transparency in military matters and fostering human interactions among potential adversaries. Further, it made an exchange of intelligence information easy as members share a baseline and can raise concerns over certain activities. Although the more than 1500 flights conducted till today built trust and confidence among the participating nations, these values seemingly deteriorated over the last couple years.

Challenges to OST

There seems to be four key factors in current discourse that justify the U.S. withdrawal from the treaty. First, continued Russian violations of the treaty`s terms. In recent years Russia introduced several restrictions on Open Skies flights by excluding certain regions from flight-over while putting limits on others. For example, Russia imposed flight distance-restrictions over Kaliningrad, previously limited access over Moscow and Chechnya, and proximity restrictions near South Ossetia and Abkhazia. Russia has also been accused of using OST flights for other reconnaissance and surveillance purposes including the mapping out of critical American infrastructure and President Donald Trump’s golf estate in New Jersey. Although these factors might not be sufficient by themselves to lead to the termination of the OST, when coupled with some additional considerations, they provide strong support to the Trump administration`s decision.

Second, the appearance and improvement of alternative surveillance means. The capability of U.S. satellites to collect quality aerial imagery has improved drastically over the recent years. Lawmakers and intelligence practitioners have suggested that U.S. satellites can deliver the same information that can be collected during OST flights without exposing the United States to foreign intelligence gathering. The collected imagery then can be shared with U.S. allies and partners meaning that other treaty members could also continue receiving the needed intelligence. There are three issues with this, however. For one, this process is extremely complex and challenging as intel has to be downgraded, an exchange with each state bilaterally coordinated, and adjusted for domestic procedures. Also, while satellites might be able to cover the intelligence gathering function of OST, they do not seem to be able to contribute to the building mutual trust function of the treaty. This means that the U.S. withdrawal from OST should be accompanied with a clear plan addressing how to mitigate these risks – one that the administration has not provided yet. There are several multilateral intel exchange frameworks that include OST members that can be built on.

Third, OST’s inability to address emerging challenges. The fundamental ideas behind the treaty are rooted in Cold War strategic legacy assumptions, norms, and behavior patterns the world has clearly moved on from. Although we once again seem to be moving towards a world that will be characterized by great power competition and potentially conflict, the characteristics and the means of both of these have changed drastically. The competitors of the United States have developed new concepts of conflicts like the Chinese unrestricted warfare or the Russian hybrid warfare. These concepts are well underway in abandoning the traditional principles of conflict and seek to maintain competition under the threshold of war while achieving strategic goals. These approaches are not only based revolutionary concepts, but also on revolutionary technological developments such as the military use of neurotechnology, lethal autonomous weapons system, genetic engineering, offensive cyber capabilities, and electromagnetic pulse technology. These developments mean that the monitoring of “Big Five” materials and legacy weapons for which OST was designed are no longer relevant making the treaty outdated.

Finally, the costs of aircrafts used for OST flights. The current Boeing OC-135B is in dire need of replacement as they are old and put crews at risk of breaking down over Russia. The costly maintenance due to their age and resulting mechanical issues, caused calls for a replacement plan. One that costs 41.5 million. Although this number is extremely insignificant when considering the entire military budget of the United States, we suggest that this could be argued for numerous components of the defense budget and it would continue to grow if cutting does not start somewhere. The modernization costs of the Boeings simply add an additional consideration when assessing the value of the Open Skies Treaty and creates an opportunity to divert specific military funds from outdated conventional tools towards the requirements of modern warfare.

Now What?

Although based on these four factors the U.S. withdrawal from the OST seems to be indeed justified, these very same factors create a strong incentive for U.S. decisionmakers to immediately seek the creation of a new global arms control architecture expanding beyond the scope of the treaty and providing more cost-effective solutions. To be able to effectively address both the Chinese unrestricted warfare and the Russian hybrid warfare concepts and emerging technologies associated with these approaches the U.S. administration must not only withdraw from OST but create new, wider platforms for international cooperation and regulations. Abandoning arms controls all-together is not the way to go.

Instead of legacy arms control tools that monitor major troop movements and military facilities only in a handful countries new, global regulatory arms control architecture is needed. This new framework should regulate early and fully the development, production, and employment of emerging technologies globally. Although some initial steps have been made in this realm, including efforts to secure a pre-emptive ban of autonomous weapons or to regulate the cyber domain, these have been either slow or completely ineffective because of several counties` individual interest. Today, we live in a world with dysfunctional legacy tools and lacking those measures that would really make the difference and be more forward-looking.

Recent campaigns and treaties that were proposed by non-governmental organizations, including the Campaign to Stop Killer Robots and the Treaty on Prohibition of Nuclear Weapons, have largely fallen on deaf ears with the United States, Russia, and China. These three actors -who must be included in a new action plan as frontrunners in revolutionary warfare- are more likely to engage in negotiations without the interference of international organizations or other third-party entities. The Trump administration has already advocated for arms control agreements that includes China but so far Russia and the United States are the only ones at the arms control table.

But there has been justifiable doubt about China’s willingness to get involved in talks infused with the notion U.S. exceptionalism. Publicly chiding Beijing for not joining the recent New START talks is most certainly not the way to go. Washington needs to rethink incentives to bring China to the table by considering new steps to provide potential for a successful creation of a new global arms control architecture. One such step is addressing China’s request to cut the enormous U.S. nuclear arsenal. Regulating the new concepts and new measures of conflict not only require complex, novel ideas and creative thinking but also global cooperation – starting with the three major players and riddance of U.S. dominance in negotiations.

The United States might hurt its relationship with some of its allies and damage the mutual trust with Russia with its withdrawal from OST, but the departure does not seem to mean the end of the world. It rather creates an opportunity. While leaving the outdated and frequently violated treaty does not cause irreparable damage for the United States, it offers an opportunity to shift the focus towards new arms control efforts that can be more comprehensive and more effective in addressing future security challenges.