Open Skies Treaty: A Primer

This blog was written by JT Ikeohvedda. JT recently graduated from the University of Michigan with a BSE in Nuclear Engineering and Radiological Sciences and will be pursuing law studies in the Fall at Arizona State University. He has ten years of experience in nuclear operations and maintenance in the US Navy. His design of a portable nuclear material detector was selected by the American Nuclear Society as one of the top 10 new projects of 2020.

Several journalism agencies broke news in the early morning hours of Thursday, May 21, 2020 that the Trump administration plans to withdraw from the ‘Open Skies Treaty’ the next day of May 22. This action could be seen as a precursor to further withdrawal from another major arms control treaty, New START. The Trump administration has already exited two other arms control treaties, the JCPOA and the INF. It can be unsettling to view the abandonment of a third treaty in as many years especially when performed in a single presidential term. This primer provides a cursory overview of the Open Skies Treaty, its relation to New START, the JCPOA, the INF, and how the US plays a part in each. This primer does not seek to influence the reader on the merits of the Trump administration's decisions. Instead, it’s purpose is to provide the reader some understanding of arms control treaties and the role the US plays in these treaties. This topic could encompass pages and pages of information but is given in a condensed manner for brevity. Several other treaties relevant to nuclear arms control are not discussed, again, for the sake of brevity. 

Before diving into the subject matter of each treaty, it is necessary to discuss how international treaties are formed. International matters differ from the average American’s understanding of the law. There is no “real” international court system or a legislative system that defines what all countries are held to. Rather, countries must agree to be held to certain laws. An early definition of international law is given by the Permanent Court of International Justice as “The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law…”[1]. The key point here is that the States choose the laws they are held to. This choice can be clearly defined in conventions or treaties but also loosely in the form of principle. For example, there is no international treaty covering eating babies. However, we know that every country is held to the law of not eating babies because the principle of eating babies is universally regarded as unlawful. 

We cannot rely on principle to establish arms control. Countries have differing levels of armaments with regards to number and power. The rules of war vary from State to State. Additionally, the US can find itself in a tough place arguing the principles of nuclear arms control as they are the only State to use a nuclear weapon against another State. Therefore, treaties and conventions are crucial in establishing international arms control. 

Atomic warfare has forever changed the landscape of international relations. In 1953, Dwight D. Eisenhower delivered a speech focused on ‘Atoms for Peace,’ where he said, “My country wants to be constructive, not destructive. It wants agreement, not wars, among nations.” [2]. The US shared much of its technology with allies along with exporting over 25 tons of highly enriched uranium to other countries for their use in research reactors. 

A little over a decade later, in 1965, negotiations began on the Non-Proliferation Treaty (NPT). Opened for signatures in 1968, this treaty operated on three major ‘pillars’ : Non-proliferation (prevention of the spread of nuclear weapons), disarmament, and the peaceful use of nuclear energy. Nuclear weapon States would agree to abide by the three pillars. Nuclear weapons States or the Power-5 (P5) were defined as the United States, Russia, the United Kingdom, France, and China. All other States were considered non-nuclear weapon States and agreed not to pursue nuclear weapons. Almost every country in the world has committed to the terms of the NPT. It is worth noting that of the five countries that have not ratified the NPT, four of them pursued and now possess nuclear weapons. The five countries are Israel, Pakistan, India, North Korea, and South Sudan. South Sudan has likely not ratified the NPT due to only becoming a recognized State in 2011 and enduring continuous civil war from its formation until earlier this year. The NPT was extended indefinitely in 1995. [3] 

Two other treaties recently renounced by the Trump administration are the Joint Comprehensive Plan of Action (JCPOA) and the Intermediate-Range Nuclear Forces Treaty (INF). The INF, true to its name, is an agreement between Russia and the US that bans the development and use of intermediate range nuclear or conventional weapons. ‘Intermediate’ is specific to the missile range of 500-5500km. Any existing weapons in this criteria were to be destroyed by June 1991 [4]. In 2014, the Obama administration announced that it had found evidence that Russia had test-fired missiles that were banned [5]. Russia denied the accusations and counter-claimed that there were missiles in the US arsenal that skirted the banned definition but could easily be adjusted into intermediate range weapons. The US also had performed research in the area of intermediate range missiles but had not crossed the line of actually performing flight tests [6]. The Obama administration largely sought to pressure Russia to fall in line with INF requirements with the help of international partners in the UN and NATO. Continuing the Obama era intermediate range missile research, the Trump administration expanded the scope of work to include nuclear-tipped cruise missiles from an ocean-going platform [7]. Leveraging the UN and NATO to push Russia back in line was abandoned as the new administration took office. The White House would go on to formally withdraw from the treaty in August 2019. Days later, the US performed its first intermediate range missile test since the treaty was negotiated in 1987. The timing in which the treaty was negotiated is important to remember when determining the merits of withdrawing from the INF. In the late 80s, Russia and the US were the major world players. Since then, China has quickly expanded its economical and military power. Without the checks and balances of international treaties, China has developed and deployed a large arsenal of intermediate range missiles. It has been surmised that leaving the INF will allow the US to respond to this Chinese arsenal [8].

The other exited treaty is the JCPOA. This agreement between the P5, European Union, and Iran limited the amount of nuclear material that Iran could possess. The key components to the JCPOA reduced Iran’s Uranium stockpile by 97% as well as reduced their enrichment levels to 3.67% [9]. This limits the possible proliferation of a nuclear weapon to Iran. The UN would lead the inspections necessary to ensure Iran’s compliance. For this compliance, the United States and EU would relax sanctions on Iran freeing up at least $100bn worth of assets [10]. Iran met the requirements of the JCPOA in October 2015 and by January 2016, all sanctions against Iran for its nuclear weapons program had been lifted by the US and EU. The next day, the US reapplied these sanctions as punishments related to issues of terrorism and human rights. Further imposition of economic sanctions were applied by the Trump administration and the US withdrew from the JCPOA fully in May 2018. The White House reasoned that Iran was cheating on the imposed treaty requirements, but UN inspectors certified that Iran had met the terms of the JCPOA. In 2019, Iran announced that it would begin enriching up to 5% unless the US relaxed the sanctions it had imposed. Iran has gone on to expand its nuclear enrichment capability. While not meeting the requirements of the JCPOA, Iran continues to host UN nuclear inspectors to show the steps it is taking in enrichment [11]. 

‘Open Skies’ is a treaty entered into force in 2002. It allows for States to perform flyovers of other States to ensure the adherence of countries to arms control treaties. Every State party to the treaty must allow other States to perform flyovers with every territory available to be surveilled. Each State is given a certain number of allowed flyovers each year but is not held to performing that many flyovers. For example, the US flew 13 total flights out of a possible 42 in 2009. The flights are performed with the close coordination of the host country. Flight plans and the surveillance results are shared with both countries. Other countries party to the treaty also have the opportunity to view the surveillance results. A limit is not applied to the surveillance equipment permitted during these flyovers. Rather, each plane has a minimum number of sensors for a flyover to meet the standards of the Open Skies Treaty. This treaty builds confidence that States are adhering to State agreements and introduces coordination opportunities between countries in planning surveillance flights [12, 13]. Russia has violated this treaty in the past by restricting the available territorial areas for flyover. The US State Department suspects that these areas are used for nuclear weapons development. However, US sources have said this has not been a hindrance for intelligence collection due to other methods available [13].

The last treaty discussed in this primer is the Strategic Arms Reduction Treaty (New START). This treaty, negotiated by the Obama administration, limits the number of nuclear arms in the Russian and US arsenals to 1550 deployed weapons each. These limits are heavily controlled by allowing each State to perform intrusive inspection of the other State’s arsenal [14]. President Trump has stated numerous times that he will not renew the treaty when it expires in February 2021 unless China also ratifies the treaty. The desire to bring China into the fold can be confusing when considering that China has around 300 deployed weapons. Limiting China to 1550 weapons seems counterintuitive to arms control and the national security and economic concern of reducing the US stockpile to 20% of its current state does not seem one that the current administration would find palatable [15]. Regardless, New START is a necessity in maintaining peace with Russia. It is possible, and probable, that exiting this treaty would push the US and Russia into another Cold War-era nuclear arms race. 

Arms control treaties exist to maintain peaceful and fair relations with other countries. The discussion of international law is broad and arms control is just one small piece of the puzzle. More data exists on these treaties than is given in this short write-up. The deliberation of these treaties is bipartisan and should be of major concern to every American citizen. A safe America is a burden carried by a knowledgeable American populace willing to engage in international policy matters. 

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