Open Sky Treaty establishes the right to undertake unarmed aerial surveillance flights by the participant nation over the territory of nations who have signed the treaty.

अति सर्वनाशहेतुर्ह्यतोऽत्यन्तं विवर्जयेत्। (1). (ati sarvanāśaheturhyato’tyantaṃ vivarjayet)  means “Excess is the cause of the ruin. Hence one should avoid it in any case.​ One would see that the world is changing fast from bad to worse due to human greed – be it for power or money. Many good conventions, treaties have fallen wayside due to human greed- Climate control is a classic example. Now Open Sky Treaty too seems to have fallen, the victim.

This article would try to examine the Open Sky Treaty, the purpose behind it and reasons for negations of the treaty by some nations in this first part and impact of withdrawal on the world stability and some viable measure to lessen the impact in the next part.

Historical Background

The Open Skies Treaty(2) was signed on 24 Mar 1992. The treaty was conceived for transparency and world stability. The Treaty allows each state-party (country) to conduct short-notice, unarmed, reconnaissance flights over the other countries’ territories to collect data on military forces and activities.

Treaty specifies that the observation aircraft used for the missions must be equipped with sensors that enable the observing party to identify significant military equipment, such as artillery, fighter aircraft, and armoured combat vehicles. Though satellites can provide the same, and even more detailed, information, not all of the treaty signatory countries have such capabilities.  The treaty is also aimed at building confidence and familiarity among states-parties through their participation in the overflights.

The origination Open Sky Treaty would be found in President Dwight Eisenhower’s Jul 1955 proposal that the United States and the Soviet Union allow aerial reconnaissance flights over each other’s territory. Moscow outrightly rejected the proposal claiming that the initiative would a disguise for extensive spying.  President George H.W. Bush revived the idea in May 1989 and negotiations between NATO and the Warsaw Pact signatories started in February 1990.

Open Sky Treaty Status

The Open Skies Treaty, which was signed on 24 Mar 1992, entered into force on 01 Jan 2002, and 34 states were finally members of the treaty.

Twenty-six of the treaty’s initial 27 signatories had ratified the accord and became the states-parties. Since the treaty entered into force, Bosnia and Herzegovina, Croatia, Estonia, Finland, Latvia, Lithuania, Slovenia, and Sweden also become states-parties.

Operation of the Treaty

Certain norms have been agreed to operations under the treaty, which could be specified as:-

• Territory: All of a state-party’s territory can be overflown. No territory can be declared off-limits by the host nation.

• Flight Quotas: Every state-party is obligated to accept a certain number of overflights each year, referred to as its passive quota, which is loosely determined by its geographic size. A state-party’s active quota is the number of flights it may conduct over other states-parties. Each state-party has a right to conduct an equal number of flights over any other state-party that overflies it. A state-party’s active quota cannot exceed its passive quota, and a single state-party cannot request more than half of another state-party’s passive quota.

• Multi-State Party Operation: The treaty allows for multiple states-parties to take part in an overflight. The flight will count as an active flight for each state-party participating. Regardless of the number of observing states-parties, however, the overflight will only count as one passive overflight for the observed state-party.

• Process: An observing state-party must provide at least 72 hours’ advance notice before arriving in the host country to conduct an overflight. The host country has 24 hours to acknowledge the request and to inform the observing party if it may use its own observation plane or if it must use a plane supplied by the host. At least 24 hours before the start of the flight, the observing party will supply its flight plan, which the host has four hours to review. The host may only request changes in flight plans for flight safety or logistical reasons. If it does so, the two states-parties have a total of eight hours after submission of the original flight plan to agree on changes, if they fail, the flight can be cancelled. The observation mission must be completed within 96 hours of the observing party’s arrival unless otherwise agreed.

• Restrictions: Although state-parties are allowed to overfly all of a member’s territory, the treaty determines specific points of entry and exit and refuelling airfields. The treaty also establishes ground resolution thresholds for the on-board still and video cameras. The aircraft and its sensors must undergo a certification procedure before being allowed to be used for Open Skies in order to confirm that they do not exceed the allowed resolutions.

• Aircraft: The treaty lays out standards for aircraft used for observation flights. Aircraft may be equipped with four types of sensors: optical panoramic and framing cameras, video cameras with real-time display, infra-red line-scanning devices, and sideways-looking synthetic aperture radar. For the first three full years after the treaty entered into force, the observation aircraft had to be equipped with at least a single panoramic camera or a pair of optical framing cameras. The states-parties may now agree on outfitting the observation planes with additional sensors.

• Data: A copy of all data collected will be supplied to the host country. All states-parties will receive a mission report and have the option of purchasing the data collected by the observing state-party.

• Some Important Statistics
  • Russia conducted the first observation flight under the treaty in August 2002, while the United States carried out its first official flight in December 2002. In 2008, states-parties celebrated the 500th overflight. Between 2002 and 2019, more than 1,500 flights have taken place.
  • Countries which have ratified the treaty cover-Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine, the United Kingdom, and the United States (though the Trump administration withdrew the United States from the treaty in November 2020). Kyrgyzstan has signed, but not ratified the treaty.
  • Russia, which shares its quota with Belarus, and the United States both have quotas permitting 42 flights per year, while Portugal is only obligated to allow two flights annually. Countries are not required to exhaust their flight quotas. In 2009, the United States flew a total of thirteen flights, twelve over Russia and one over Ukraine.
  • The 96 hours limit for completion of an Observation Flight can be extended by 24 hours if the host insists that the observing party use the host’s aircraft and demonstration flight is conducted.

Treaty Implementation

Implementation: To ensure impartial implementation, an ‘Open Skies Consultative Commission’ (OSCC) comprising representatives of all states-parties was created.  The OSCC is responsible for the implementation of the Open Skies Treaty. The OSCC considers matters of treaty compliance, decides on treaty membership, distributes active quotas, and deals with any questions that may arise during the implementation of the treaty.

Reviews:   The Treaty mandates review conferences every five years. The First Review conference was held in 2005. The 2nd Review Conference for the Open Skies Treaty was held in Vienna from June 7-9, 2010, under the chairmanship of the United States. The Conference’s Final Document paved the way for the use of digital cameras and sensors in the future by requesting states-parties consider the technological and financial aspects of converting to digital systems. The document also encouraged the expansion of the ‘Open Skies Treaty’ to other countries, particularly those in the Organization for Security and Cooperation in Europe, where the OSCC is headquartered.

Withdrawals from “Open Sky Treaty’

United States of America

The United States (3), on 22 May 2020, submitted a notice for its decision to withdraw from the Open Sky Treaty to the Treaty Depositaries and to all other States Parties to the Treaty; on 21 Nov 2020 (Six months from the notice), the United States seized to be a party to the Treaty.

President Trump’s National Security Strategy has been clear about protecting the American people, the American way of life, and American security interests.  He has been of the view that the United States must take a clear-eyed look at any agreement through the prism of today’s reality and assess whether such agreement remains in the U.S. interest.  Thus after careful consideration, including inputs from its Allies and key partners, the USA  decided that it was no longer in America’s interest to remain a party to the Treaty on Open Skies.

At its core, the Treaty was designed to provide all signatories an increased level of transparency and mutual understanding and cooperation, regardless of their size. But this was not a case to be.  USA stated that Russia’s attitude towards implementation and violation of Open Skies Treaty has undermined the central confidence-building function of the Treaty – and has, in fact, fuelled distrust and threats to USA’s national security – making continued U.S. participation untenable.

The USA stated that while the United States along with our Allies and partners that are States Parties to the Treaty have lived up to our commitments and obligations under the Treaty, Russia has flagrantly and continuously violated the Treaty in various ways for years. The USA pointed out that Russia has been refusing access to observation flights within a 10-kilometre around Kaliningrad and 10 Kms corridor along its border with the Russian-occupied Georgian regions of Abkhazia and South Ossetia, thereby attempting to advance false Russian claims that these occupied territories are independent states.  The USA also felt that Russia’s designation of an Open Skies refuelling airfield in Crimea, Ukraine, was similarly an attempt to advance its claim of purported annexation of the peninsula, which the United States never accepted.

These problems, moreover, follow on years of different Russian violations of the Treaty at various points since the Treaty entered into force, such as Russia’s violation, up until 2017, of improperly declaring force majeure to impose airspace restrictions related to VIP ground movements.  These periodic and shifting violations highlight Russia’s willingness for many years now, to restrict or deny overflights whenever it desires.  The USA stated that this has struck at the heart of the Treaty’s confidence-building purpose. Thus, it was no longer feasible for the USA to continue to be a part of the Open Sky Treaty.

Russia

Russia(5), in turn, on 15 Jan 2021 declared that it will withdraw from an international treaty allowing observation flights over military facilities following the US exit from the pact. As seen earlier, US President Donald Trump had declared Washington’s intention to pull out of the Open Skies Treaty arguing that “Russian violations made it untenable for the United States to remain a party”.

Russia’s foreign ministry in a statement stated that the US withdrawal from the Open Skies Treaty last year ( May 2020)  “significantly upended the balance of interests of signatory states,” adding that Moscow’s proposals to keep the treaty alive after the US exit have been cold-shouldered by Washington’s allies. Russia opined that the treaty was intended to build trust between Russia and the West by allowing the accord’s more than three dozen signatories to conduct reconnaissance flights over each other’s territories to collect information about military forces and activities.

The Russian foreign ministry said that Moscow was now launching the relevant procedural moves to withdraw from the pact.  Russia vehemently denied USA charge of   Russia breaching the treaty. Moscow has argued that it was the US was acting unfairly and USA’s withdrawal from the treaty has eroded global security by making it more difficult for governments to interpret the intentions of other nations, particularly amid Russia-West tensions after the Russian annexation of Ukraine’s Crimea in 2014.

Interestingly, the move, announced by Russia’s foreign ministry, comes days before U.S. President-elect Joe Biden’s Jan. 20 inauguration amid fears of a burgeoning arms race. Russia said in a statement that Moscow was keen on continuing as a member of the Treaty and had made specific proposals to other members to militate against the impact of the U.S. exit; however, those proposals were not backed by Washington’s allies. The Kommersant newspaper reported earlier that Moscow had tried to get guarantees from other countries that they would not share such intelligence with Washington but had not been given any assurances

Russia has rightful concerns that despite leaving the open sky treaty, Washington could potentially retain access to overflight intelligence gathered by allies who remain members in the treaty.

To be continued in the next part..

Title Image Courtesy : https://military.wikia.org/wiki/Treaty_on_Open_Skies

Disclaimer: The views and opinions expressed by the author do not necessarily reflect the views of the Government of India and Defence Research and Studies

References: (All  accessed on 16 Jan 2021)

1. Sanskrit Quote, Retrieved from https://resanskrit.com/sanskrit-shlok-popular-quotes-meaning-hindi-english/  ace
2. Daryl Kimball, Nov 2020, Arms Control Association. Retrieved from: https://www.armscontrol.org/factsheets/openskies
3. Pompeo M R ( Secretary of State), 21 May 2020, Press Statement State Department of USA, On the Treaty on Open Skies, retrieved from: https://www.state.gov/on-the-treaty-on-open-skies/
4. Staff Reporter, 15 Jan 2021, Tomes of India , Russia withdraws from Open Skies Treaty after US departure, Retrieved from: https://timesofindia.indiatimes.com/world/rest-of-world/russia-withdraws-from-open-skies-treaty-after-us-departure/articleshow/80286731.cms
5. Tom Balmforth and Maria Kiselyova -Reuters’ Staff, Russia announces exit from Open Skies treaty citing U.S. withdrawal, Retrieved from: https://www.reuters.com/article/us-usa-russia-openskies-exit/russia-announces-exit-from-open-skies-treaty-citing-us-withdrawal-idUSKBN29K1IC